Opinion
March 3, 1947.
Present — Hagarty, Acting P.J., Carswell, Johnston, Adel and Nolan, JJ.
In a proceeding pursuant to article 84 of the Civil Practice Act, commenced by a motion to stay arbitration, John J. Flanagan, individually and as administrator, etc., appeals from an order made at Special Term, after trial of certain framed issues, staying arbitration by appellant of a controversy under an agreement dated July 15, 1937, between Joseph A. Flanagan, deceased, and the respondent, John J. Flanagan. By the agreement under which arbitration was sought, the parties attempted to provide for the allocation and distribution of the property and assets of a corporation of which they were the principal stockholders. Order unanimously affirmed, with costs. We express no opinion as to the legality of the agreement. That question was not decided at Special Term, and is not before us on this appeal. If, as appellant contends, the agreement was illegal and, consequently unenforcible, appellant is not aggrieved by the determination of Special Term that arbitration thereunder should be stayed. No question as to the validity of the order directing trial of framed issues or the scope of the determination thereby directed is properly presented on this appeal. There is no indication in the record that appellant objected to the procedure adopted, or to the determination of issues other than those provided by sections 1450 and 1458 of the Civil Practice Act. Parties may, if they so elect, depart from the issues made by the pleadings and try other questions relating to the merits of the controversy, by consent or acquiescence. ( Schoepflin v. Coffey, 162 N.Y. 12, 16.) Moreover, the intermediate order complained of is not specified in the notice of appeal, and may not be reviewed. (Civ. Prac. Act, § 580; Landmesser v. Hayward, 157 App. Div. 74; O'Connor Long Island Properties Corp. v. Bruckman, 288 N.Y. 23.)