Wiberly v. Matthews

10 Daly 153 | New York Court of Common Pleas | 1881

Charles P. Daly, Chief Justice.

The oath of the arbitrator could be waived by the parties ; and, that it was waived may, I think, be implied from the facts and circumstances of this case (Browning v. Wheeler, 24 Wend. 259 ; Winship v. Jewett, 1 Barb. Ch. 183 ; Howard v. Sexton, 1 Den. 440 ; Day v. Hammond, 57 N. Y. 483; Nason v. Ludington, 8 Daly, 149).

The submission was for the purpose of ascertaining the amount to be paid under the contract, as there was extra work, for which an allowance was to be made, and omissions, for which there was to be a deduction ; and it is well settled that such a submission is valid and binding upon the parties (Pres't. &c. Delaware, &c. Canal Co. v. Pennsylvania Coal Co., 50 N. Y. 250 ; Scott v. Avery, 5 H. of L. Cas. 811).

In respect to the objection upon which the appellant main-]y relies, that the award was made by the arbitrator, without notif ying the parties of any time and place when and where he would give them a hearing upon the matter submitted ; it is sufficient to state, that although this is requisite to the validity of an award, it may be waived by the parties (Elmendorf v. Harris, 23 Wend. 632), and is waived, where it was plainly the intention of the parties that there was to be no hearing, which, I think is manifest in this case, as the arbitrator was one of the architects under whose supervision, by the terms of the contract, the building was erected, and who, it is evident from the facts, and the conduct of both parties, was relied upon, by each, as an expert, who was to ascertain, by a personal inspection of the building, the amount and value of the omissions from the contract, and of the extra work; and having done this, was then to settle finally between them, how much was to be paid by Matthews to Drummond.

Indeed, I am so thoroughly satisfied of the correctness of the finding óf the learned referee, as to the facts and the law, that I prefer to adopt his opinion, as conveying my own view of this case, as concisely and as clearly as I could express it in words.

The judgment given on the report of the referee should be affirmed.

J. F. Daly and Van Hoesen, JJ., concurred.

Judgment affirmed.^*

* The judgment entered upon this decision was affirmed by the Court of Appeals January 23d, 1883 (see 91 N. Y. 650).