Beach v. Sterne

22 N.Y.S. 330 | N.Y. Sup. Ct. | 1893

FOLLETT, J.

The rule is well settled that, when an arbitrator has delivered his award, his power is at an end. Flannery v. Sahagian, 134 N. Y. 85, 31 N. E. Rep. 319. The document of August 3d, signed by the arbitrator, discusses the question of fact involved in the litigation upon the decision of which the rights of the parties turned. It is, in matter and form, an opinion, and differs as widely from an award as a judicial opinion does from a formal decision, which is the basis of the judgment to be entered; and it is apparent from the correspondence between the arbitrator, the attorneys for the parties, and Mr. Beach, that all of them understood that it was intended as an opinion. They all speak of it as such, and it was at the request of Mr. Beach and his attorney that a written opinion on the merits was delivered. The opinion was not authenticated in the mode required by section 2372 of the Code, so that a judgment as provided for in the submission could be entered upon it. The arbitrator, at the request of the appellant, delayed further action until after the 1st of September, when his attorney would return to the city; and under such circumstances he should not be heard to say that the opinion was a formal award, and that the arbitrator was without power to make one in accordance with the statutes. Had the document of August 3d been intended by the arbitrator to be a final award, and delivered to the parties or their attorneys, and accepted by them as such, the position of the appellant would be tenable. But it was not so intended by the arbitrator, or so understood by counsel; and the judgment entered pursuant to the order of the special term should be affirmed, with costs. All concur.