90 N.J. Eq. 419 | New York Court of Chancery | 1919
This suit is to set aside an appraisement made under the provision of a fire insurance policy. The complainants operated a small printing plant in Newark, which was damaged by fire. They were insured for $3,000, and being unable to agree with the insurance company upon the amount of loss, the dispute was submitted to appraisers who appointed an umpire “to decide upon matters of difference only, as provided for in the within agreement.” The articles of submission provided that the appraisers
“shall together appraise and estimate the sound value of the below-described property, and the amount of loss 'and damage thereon caused by the fire' which occurred on the 5tli of November, 1917. Provided that the said appraisers shall first select a competent and disinterested umpire, who shall act with them in matters of difference only. The ¿ward of said appraisers and umpire (if the umpire be called upon to act), or any two of them, made in writing, in accordance with this agreement, shall determine the amount of said sound value, and of said loss and damage, as provided by the policy or policies of said company or companies.”
Tbe complainants - submitted to the appraisers a list of one hundred and forty-seven articles claimed to have been damaged or destroyed. The appraisers agreed upon the sound value, except as to one item, at $3,075.05. Upon the loss they agreed as to forty-two, and disagreed as to the remaining one hundred and five items; and then they called in the umpire, to whom they submitted their differences. The three worked together in an effort to reach an agreement, hut without success. The umpire
The sound value of item 5G of stock, consisting of five thousand four-page circulars, was agreed upon by the appraisers at $25. It was a total loss. The umpire refused to appraise the loss, because-the sound value had not been established to his satisfaction by the production of the order ticket, his position being that in the absence of the order ticket the circulars were to be considered “dead” stock and of no value. It was not within the province of the umpire to pass upon the sound value. As to this there was no matter of difference, and no submission. I-Iis duty was to appraise the loss only and his refusal was legal misconduct. Collings Carriage Co. v. German-American Insurance Co., 86 N. J. Eq. 53. This error of judgment is not, however, to be seized upon as a ground for vitiating the award as a whole. At least, not in this court upon an appeal for equitable relief. In all other respects the appraisers and umpire acted strictly within their respective capacities, and with absolute fairness towards the parties. The complainants ought to be relieved, but only to the extent of the injury. The award could be sent back to the arbitrators for correction, as was done in the last case cited, but as the loss on the circulars was total, and as their duty, consequently, would be merely perfunctory, the court can as well make the adjustment by increasing the amount. Upon tender to the complainants, and refusal upon payment into the court of the amount of the award, plus $25, with interest and costs of
There was another item, No. 17, consisting of nine summer rollers, upon which the appraisers fixed a sound value of $6.70 and $5.16, respective^, and loss accordingly, concerning which there was much testimony and considerable discussion. The umpire regarded the rollers- as obsolete and worthless and refused to allow anything for sound value or loss. The matter of difference related primarily to the sound Value, and one proper for the umpire to pass upon. The evidence is that the life of summer rollers is one season only, and as this had been spent during the summer preceding the fire, the umpire, it would seem, correctly decided they had no value.
It was said on the argument and asserted in the brief of complainants’ counsel that on a few minor articles of little value, the umpire refused to allow for loss, although the appraisers had estimated some trifling damage. I have carefully gone over the items of the schedule and find them all accounted for, but if there are any such instances where the appraisers have disagreed, it -was entirely proper for the umpire to disregard their estimates, if, in his honest opinion, there was no loss.