273 A.D. 891 | N.Y. App. Div. | 1948
—An arbitration award, determining that appellant completed deliveries of merchandise under contracts of purchase and sale, has been vacated. Appellant took the position before the arbitrators that, to the extent that it did not forward the full quantity specified, the nondelivery thereof was expressly waived or acceptance refused after tender. These were questions that were properly within the submission for the arbitrators to decide. The objections to the award are based rather upon the theory that it was contrary to the evidence before the arbitrators, a question on which the court cannot pass, than on the ground "that a mutual, final and definite award upon the subject-matter submitted was not made.” (Civ. Prac. Act, § 1462, subd. 4.) The order appealed from vacating the award and the order denying appellant’s cross motion to confirm the award are unanimously reversed, with $20 costs and disbursements to the appellant, and the award confirmed. Settle order on notice. Present — Peck, P. J,, Dore, Callahan, Van Voorhis and Shientag, JJ.