Pratt v. Hackett

6 Johns. 14 | N.Y. Sup. Ct. | 1810

Kent, Ch. J.

In the case of Munro v. Allaire,^‡ it was decided, that it was not necessary to aver, that the award was ready to be delivered; but it was sufficient to allege that the arbitrators made and published this award, and the delivery would be implied.

Skinner. That case does not decide the point now raised, for the replication states that the award was ready to be delivered to the plaintiff.

Per Curiam.

The demurrer in this ease is well taken. The authority given by the submission must be pursued. As the bond provided that the award must be ready to be delivered to the parties, it is no award until it is so ready; and though the cases (2 Caines, 326. Cro. Car. 541. Hard. 399. 1 Ld. Raym. 114.) have gone so far as to hold, that the making of the award was presumptive evidence, that it was ready for delivery; yet here that presumption is destroyed by the direct averment in the replication, that the award was not ready for delivery to the defendant, but was only ready for delivery to the plaintiff.

Judgment for the defendant.

‡ 2Caines, sse3~G‘