12 A.D. 421 | N.Y. App. Div. | 1896
The action was brought to procure the valuation of certain lots and of the buildings thereon in the city of New York. The facts, so far as we need to refer to them here, are as follows : March 2, 1874, Mary S. Yan Beuren and Caroline Hoppoclc entered into a written agreement, under seal, wherein Mrs. Yan Beuren, party of the first part, leased to Mrs. Hoppock, party of the second part, the
Caroline ITo.ppock went into possession and occupied the lot, under this agreement, until her death November 23, 1890. She. left a will under which her interest in the lot and buildings and the agreement in question vested in the defendants, '.'either directly or by other wills or conveyances. Mary S. Van Beuren died August 9, 1894, and her
Early in August, 1895, defendants’ arbitrator met with an accident and became seriously ill and unable to attend to any business. In October, 1895, as soon as he was able to be about, he went abroad and did not return until the middle .of May, 1896. In the meantime, and September 25,1895, plaintiffs’ attorneys wrote to defendants’ attorneys calling attention to the fact that the letter of July 24, 1895, by plaintiffs to defendants’ arbitrator had not been answered, and notifying him that this was a delay in the proceedings on the part of defendants’ arbitrator, and asking if he meant to refuse to proceed in the arbitration. To this letter defendants’ attorney replied September 27, 1895, informing plaintiffs’ attorney of the accident to and sickness of defendants’ arbitrator, and saying that he did not refuse to proceed, but was most anxious to go on with the arbitration, and would inquire as to the condition of defendants’ arbitrator and ascertain how soon it would be possible to proceed. October 2,1895, the plaintiffs’ attorney, by letter, asked defendants’ attorney to submit names for an umpire. October 3, 1895, defendants’ attorney wrote plaintiffs’ attorney that the agreement permitted the arbitrators to
It seems to us this conclusion must have resulted from an incorrect interpretation of the agreement itself.
The court evidently assumed that the valuation of the building was to be ascertained only by the joint appraisal of the three persons as arbitrators, instead of by the two as arbitrators, if. they agreed; and, if they failed to agree, then by the umpire selected by them, such umpire acting alone in determining such value. ■ In this, we think, there was error. It is very clear that the value of the lot was to be determined by the two arbitrators alone if they could agree, and, if they failed to agree as to the value, they were to appoint an umpire, and this being done, the duty of the arbitrators ended, and the matter of value rested in the determination of the umpire alone. (Lyon v. Blossom, 4 Duer, 318, 325, and cases therein cited; Brown v. Lyddy, 11 Hun, 451; Wood on Arb. & Awards [ed. 1872], 241.)
In the absence of such formal submission we may assume the presiding justice would not have Concurred in that decision, ‘which would then have been in direct conflict with the former decision of the same court. Having these two decisions in mind, we must adhere to the conclusion already expressed as to the construction of the agreement in this case.
This construction being given to the agreement, there can be no question as to the right of the plaintiffs to maintain this action. When the arbitrators failed to agree. as to the value of the lot and building in July, 1895, the only duty left for them to perform was to choose an umpire. It was entirely unnecessary for them to bé present, or to act with the umpire in the performance of his duties under the agreement. The defendants’ arbitrator practically refused to act in the performance of his duty, to agree with the plaintiffs’ arbitrator in selecting a person as umpire. He should have acted at once when it became a settled fact that the arbitrators could not agree, and that was July 24, 1895. He was called upon to act at that time by the plaintiffs’ arbitrator, who submitted to him a list of names. It is said that he did consider these names and prepared an answer to be sent to plaintiffs’ arbitrator, and was still considering the matter when he met with a severe accident, and that a serious illness resulted which rendered it impossible for him to transact any business. This was the early part of August, 1895. He remained in New York until October, 1895, and then was able to be about
Under these circumstances, the plaintiffs were clearly justified in applying to the court for relief in the premises, and were entitled to maintain this action.
It has frequently been'held that where a party refuses to appoint
Within the well-settled rules laid down in these cases, and in view of the action of the defendants with reference to this arbitration,, the court was called upon to afford the plaintiffs relief in this-action, and should have done so. It did permit the parties on both sides to give evidence as to the value of the lot and building, but-finally refused to fix and determine such value. In this, we think, the court erred. Having acted as they did, the' defendants were not entitled, at the time of the trial, to have the matter of values, remitted to the arbitrators merely because the ■ defendants’ arbitrator had finally returned and was willing to proceed with the-arbitration. They should not have been permitted to delay the-, matter for nearly a year and until the trial of plaintiffs’ action was. brought on, and then defeat the action by offering to proceed and. do what it was their duty to do nearly a year before, and before the-plaintiffs had been put to the trouble and expense of bringing and. trying their action.
For the reasons herein suggested the judgment should be reversed and a judgment entered appointing a suitable person to appraise- and value the lot and building, etc., as prayed in the complaint,, with costs of the action and of the appeal.
Yan Brunt, P. J., Rumsey, Patterson and Ingraham, JJ.,. concurred.
Judgment reversed, and judgment entered appointing a suitable-. person to appraise and value the lot and building, etc., as prayed in. the complaint, with costs of the action and of appeal.