29 N.Y. 291 | NY | 1864
Only two of the three arbitrators chosen met and heard the proofs and allegations of the parties. The third had due notice of the time and place of hearing, and appeared there, but declined publicly to take any part whatever in the proceedings, and did not remain or act during the trial. The award was afterward made by the two, before whom the matters submitted were heard. The question to be determined is, whether the award thus made is valid, and can be enforced by action.
The submission was to three arbitrators, with a provision that the award should be in writing signed by the three, "or any two of them," and ready for delivery by a certain day fixed. *293
There can be no doubt that at common law, before the revised statutes, under such a submission, two arbitrators might lawfully meet and hear the proofs and allegations of the parties, where the third had notice and refused to attend and take part in the proceedings; and that an award made by the two who heard the matters submitted, under such circumstances, was a valid and binding award. This was settled in England at an early day, and upon full deliberation. (Goodman v. Sayres, 2 Jac. Walk. 261; Delling v. Matchett, Willis, 215; S.C. Barnes, 57;Sallows v. Girling, Cro. Jac. 278; Watson on Arbitration, 115; Kyd on Awards, 106-7; Green v. Miller, 6 Johns. 39;Crofoot v. Allen, 2 Wend. 495.) It was held that by the latter clause of the submission the entire authority was disjoined, so as to make it a submission to the lesser number to hear, as well as to determine. This is still the rule of law in this state, unless it has been changed by the revised statutes. By the statute (2 R.S. 542, § 7), it is provided that "all the arbitrators must meet together, and hear all the proofs and allegations of the parties; but an award by a majority of them shall be valid, unless the concurrence of all the arbitrators be expressly required in the submission."
It is claimed, in behalf of the plaintiff, that this provision of the statute has reference to arbitrations where the submission provides for a judgment in some court, to be entered upon the award, and no others, and that all the provisions of title 14 of the statute above referred to relate exclusively to such arbitrations, and do not control or affect in any manner arbitrations in which no such clause is inserted. All other arbitrations, it is contended, are still governed, in all respects, by the rules of the common law. I cannot concur in this view, nor is there any authority to sustain it. Many of the sections in the title, doubtless, do relate exclusively to arbitrations in which the submission provides for the entering up of a judgment on the award. Those especially which provide for confirming, vacating, modifying, *294 or correcting the award, entering judgment thereon, reviewing and enforcing the judgment, and the like. But it is entirely clear, I think, that most of the other provisions of the title were designed and intended to regulate and control, by uniform and definite rules, all arbitrations upon written submissions in this state. This, I think, plainly appears upon the face of the statute. It is entitled "Of arbitrations," without qualification. The first section then goes on to provide that all persons, with certain specified exceptions, may, by an instrument in writing, submit to the decision of one or more arbitrators any controversy existing between them, which might be the subject of an action at law, or of a suit in equity, except as in the act is otherwise provided." The section then goes on to provide that the parties "may, in such submission, agree that a judgment of any court of law, and of record, to be designated in such instrument, shall be rendered upon the award made pursuant to such submission."
It is quite obvious that it was the design of the framers of the statute to leave it entirely optional with the parties to insert in the written submission provided for, the agreement for the entry of a judgment upon the award, or not, as they might elect. Provisions are made for carrying such an agreement into effect where it should be inserted in the submission; but it by no means follows, nor is there any thing to show that the other provisions of the statute do not apply where there is no such agreement in the written submission. If it is in writing it comes within such provisions of the statute as are applicable to the particular submission agreed upon.
The second section absolutely prohibits a submission respecting the claim of any person to any estate in fee or for life to any real estate. The language is: "No such submission shall be made." This undoubtedly refers to the submission in writing, provided for in the first section, whether it contains the provision for the entry of judgment *295
or not. At least it may be safely affirmed that such has been the general understanding of the courts, and the profession as to the force and effect of this section, and this court has so regarded it. Olcott v. Wood, (
If I am right in this, it follows that the hearing, not having been according to the statute, and not sanctioned by the defendant, the award is a mere nullity and can not be enforced. No action will lie upon it, and the plaintiff should have been non-suited, or a verdict ordered for the defendant. The judgment should, therefore, be reversed, and a new trial ordered, with costs to abide event.
All the judges concurring, judgment reversed. *297