11 Paige Ch. 529 | New York Court of Chancery | 1845
The time for appealing, from an order or decree of the vice chancellor, being limited by statute, the court has no power to extend the time for appealing, indirectly; by vacating the decree or order and entering it as of a more recent date, for the mere purpose of giving a party the right to appeal. That was so held by this court in the case of Caldwell v. The Mayor of Albany, (9 Paige's Rep. 572,) which must be considered as decisive upon that part of the present application. It is, therefore, unnecessary to examine the question whether the court is authorized to interfere in ány way with a decree by consent, so as to give to the defendants the right of appeal, in a case not provided for in iheir stipulation; even if the chancellor would have had jurisdiction to hear and decide the appeal, if it had been duly entered.
The parties having stipulated that a decree might be entered in the cause, in conformity with the decision of Mr. Hastings, this court ought not to interfere to set aside that decree, if the terms of the agreement have been in facl. Complied wife on the part of the complainants, unless there is some unbending legal principle which fenders such An interference on'the part of this court necessary and proper. The effect of the agreement was, in substance, to waive the default of these two defendants, and to permit them to put in an answer and make a defence to the suit, and that the questions arising in the cause should then be submitted to Mr. Hastings to decide, in the same mariner as the vice chancellor would have been authorized to decide them,
Our courts have decided, that a mere agreement to refer the matters in controversy in a suit, to an arbitrator to hear and decide the same, is a discontinuance of the suit. And that the only remedy of the parties in such case is upon the agreement to refer, or by a shit upon the award, if an award is in fact made in conformity to the stipulation. But it has also been held, and that too by the court of dernier resort in this state, that an agreement to refer a suit pending, to an arbitrator, and that a judgment shall be entered in the cause in conformity with his decision, will justify the entry of a judgment accordingly; which judgment will be binding upon the parties, as a judgment by consent. (Yates v. Russell, 17 John. Rep. 461. Green v. Patchen, 13 Wend. Rep. 293.) In the case under consideration, the defendants might probably have revoked their consent to submit the cause to the decision of Mr. Hastings, at any time before it had been heard by him, and left for his decision, pursuant to the stipulation. But they certainly could not have done so without waiving all the benefits of the stipulation, as to opening their default and permitting them to put in an answer
The entry of the final decree was therefore regular, as well as the previous decree and the proceedings before the master; as to which previous decree and the master’s report, there certainly is no foundation for a pretence of irregularity, so far as the rights of J. Y/idner and P. Widner are concerned. Even if the final decree should now be set aside, upon the ground that the powers of Mr. Hastings were spent when his first decision was made, which settled the whole merits of the controversy, it would be a matter of course to direct the entry of the final decree, upon the master’s report, upon the usual application to the chancellor; in case the vice chancellor is incompetent to direct the entry of a mere formal decree, on the ground that he had once been counsel in the cause. From the view I have taken of the case, however, even that formality is unnecessary; and this application must be denied.