29 Barb. 465 | N.Y. Sup. Ct. | 1859
What was said in Owen v. Boerum, (23 Barb. 187,) as to the defenses which could be interposed in a suit upon an award, had reference to the case then before us, which had a purely legal aspect throughout. The action was for a trespass; the arbitration and award were pleaded as a defense, and the plaintiff, under the code as it then stood, permitting a reply, denied generally the allegations of the answer. The question was not, therefore, what relief might have been had in the action, by either party, against the award, but what evidence was proper under a state of pleadings which set up only legal rights. There cannot be any doubt that in actions on awards, as in other cases under the code, a defendant may put in an answer alleging facts sufficient to vacate the award, and pray an affirmative judgment to that effect; and that he is no longer driven to a cross action for that purpose. It was said that an action . cannot be maintained to set aside an award for misconduct of the arbitrators without making them partiesbut this is not the rule. They might be made parties under the. former practice, where the bill charged them with fraud or gross misconduct, for the purpose of obtaining a discovery from them, and then the court might make a decree against them for the costs. Van Cortlandt v. Underhill, (17 John. 405,) was a case of this kind. Ch. J. Spencer, in the court of errors, speaks of the conduct of the arbitrators as gross and scandalous misbehaviour, outraging every principle of justice. (See also 2 Atk. 396.) Unless charges of this description were made in the bill, against the arbitrators, they were not compellable to discover, the grounds of their award, and in- that event they might demur to the bill. (Story’s Eq. Jur. §§ 1498, 1500. Story’s Eq. Pl. § 232. 8 How. U. S. Rep. 134.)
Lott, Emott and Brown, Justices.]
In the present case, the answer as amended alleged that the arbitrators examined witnesses in the presence of one party and in the absence of the other, and asked that for this cause the award should be set aside. This answer brings the parties and the question before the court precisely as they would be in a cross action. The referee has found this issue in favor of the defendant, finding also that the arbitrators acted from misapprehension, and not corruptly. They would not therefore have been mulcted in costs, if they had been before the court, and it is no ground of objection that they are not here.
Upon the main question, I think the referee was right in his conclusion. The point upon which Lord Eldon put his decision in Walker v. Frobisher, (6 Ves. 70,) was that the statements of the persons who were examined in the absence of the parties did. not pass as mere conversation. The fact that these statements were reduced to writing, he considered sufficient to establish this. In the present case, the statements of Van Wart and Cypher were called for by the arbitrators themselves, and were given at their request, in the presence of the plaintiff. This is quite as strong a circumstance to show that the information acquired was considered material, and not to be mere conversation, as if such information had been reduced to writing. It does not change the case that the statements of these persons were not made under oath. The admission of such evidence would be more dangerous without oath than with it. I do not speak with reference to this particular case, but we are obliged to adhere to a general rule in cases of this description; and from reasons of public policy, that rule ought to be a stringent one. It has been said by many of the judges that it is impossible for the courts, or even for arbitrators themselves, to say what influence such statements may have had upon them. We must go upon the general rule which condemns such a practice.
The judgment should be affirmed.
