5 Daly 436 | New York Court of Common Pleas | 1874
The agreement was one coming under that class of cases pointed out and distinguished by Judge Allen in The President &c. of the Delaware &c. v. The Pennsylvania Coal Co. (50 N. Y. 266), as cases in which the agree
In Scott v. Avery (5 H. of Lords’ Cases, 811; 8 Exch. 417), the judges who delivered opinions went farther than this, or at least some of them, by holding that no action lies at all until the award is made; that that is part of the cause of action ; that the promise is to pay only what may be awarded ;■ that it is competent to agree that a sum of money shall be paid upon such a contingency or in such an event, and that there-can be no right of action until an award is made. This appears to have been followed in the subsequent cases of Brauenstein v. The Accidental Death Ins. Co. (1 Best & Smith, 782),. and Tredman v. Holman (1 Hurls. & Colt. 72). But it was-not necessary, in either of these cases, to go this length. In Scott v. Avery, the plaintiff declined to accept the sum ascertained by the committee. In Brauenstein v. The Accidental Death Ins. Co., the defendants averred that they had always been ready to arbitrate; but that there had been no arbitration ; and in Tredman v. Holman, the plaintiff refused to arbitrate. Nor was it necessary to go so far in the case in the Court of Appeals, for though in that case arbitrators were appointed, they never had a meeting ; the matter in dispute had. never been submitted to them. Nor is it necessary in the case now before us. All that was shown in this case was that each party had appointed an arbitrator; that they had met and could not agree upon a third one; the contract making provision for an arbitration by three arbitrators, each party selecting one, and the two so selected appointing the third. To the three so-selected the matter was to be referred, and the decision of any two of them was to be final.
It does not follow that because the two arbitrators selected
Loew and J. F. Daly, JJ., concurred.
Judgment affirmed.