Winship v. Jewett, 1 Barb. Ch. 173

Winship v. Jewett

1 Barb. Ch. 173 | New York Court of Chancery | 1845

The Chancellor.

It is unnecessary to examine the question whether the vice chancellor could properly entertain a second motion, to open the decree in this case, while the order, of the third of March, 1845,. denying the first motion, remained in full force; without asking for a rehearing of that application, in connection with the new matters disclosed by the subsequent affidavits. For, I think, there is not sufficient shown, in the affidavits on which the second application was founded, to induce a belief that the defendants had probably a meritorious defence to the suit. The answer states several acts of misconduct, on the part of the arbitrators, which, if true, might probably be.sufficient to vitiate their award, on that ground. But the answer is not sworn to; and there is nothing in the affidavits to show that the defendants even believe those allegations, of misconduct on the part of the arbitrators, to be true. The general affidavit of one of the defendants, that he has stated his case truly tq his counsel, and that he is advised by such counsel *183and believes, that they have a good and substantial defence upon the merits, is not sufficient, in this court, to authorize the setting aside of a regular default or decree. But the party who wishes to obtain relief of that kind here, upon the ground that he has a meritorious defence, must state the substance of such defence in the affidavit, on which his application is founded, or must show the facts, upon oath, in some other'form; so that the court may see what the alleged defence is, and be able to form an opinion whether he has a meritorious, or only a mere technical defence, or whether he has any defence whatever.

It is alleged, in the answer, that the arbitrators agreed upon by the parties to make the partition, were not sworn. And as that is urged here as an objection to the validity of the award, that alone may be the meritorious defence which the counsel of these defendants has advised them they have in this case. But if that is any defence whatever, it is merely technical; and this court ought not to open a regular order to close the proofs, and a decree founded thereon, to allow the defendants to prove such a defence. On the contrary, if it was proper to open the order to close the proofs for any other cause, the defendants should have been restricted from introducing any evidence to sustain such a technical objection to the validity of the award. For it would be wholly unjust, where parties have suffered the arbitrators to proceed, without requiring them to be sworn, after-wards to urge that they were not sworn, as an objection to the validity of their partition of the farm, because such parties are not satisfied with the decision; and when it was too late to obviate this technical objection, if it is one. (See Allen v. Francis, 9 Lond. Jur. Rep. 691.)

Nor does the affidavit of either defendant, where it attempts to set out what the defence really is, show that the award is invalid, for any other cause. The affidavit of Hess, merely states that they claim that the partition is invalid, and inoperative, by reason of the arbitrators having misapprehended the force and effect of the submission; and by making the award under a mistake as to material facts and circumstances, by which injustice has been done the defendants. In other words, *184they claim that the award, as to the partition, is invalid, because th'e arbitrators have made an erroneous decision. That, however, would not vitiate the award. For it is well settled that the award, if made in good faith, is conclusive upon the .parties,; and that neither of them can be permitted to prove that ‘the arbitrators decided wrong, either as to the law or the facts of the case. (Jackson v. Ambler, 14 John. Rep. 105. Mitchell v. Rush, 7 Cowen’s Rep. 185.) The question submitted to the arbitrators, in this case, was as to what parts of the farm, and how much thereof, should be assigned to the parties respectively. Of course they were to be the exclusive judges of the. relative values of the several parcels. And the very object cf the submission to them would be defeated by permitting the defendants to prove that the share of the farm assigned to them) by the award, was less than their proper proportion of the whole farm.

What the defendants mean, in tlreir affidavits, by the arbitrators having misapprehended the force and effect of the submission, it is difficult to conjecture; unless it relates to the objection set up in the answer, that the submission did not refer to any land, nor specify the extent of the interests of the respective parties in the property to be partitioned. But if it refers to that, the objection is obviated, by the proof of the fact) that the instrument attached to the submission, and making a part thereof, contained a sufficient description of the farm, and of the interests of the parties therein, as tenants in common. The instrument attached, being referred to in the submission, and executed at the same time, the two together formed the agreement for submission. And no one, from reading the two papers together, can have any doubt, without the aid of any extrinsic facts, what land was to be partitioned between the parties, or What undivided portion thereof belonged to each party. The testimony also shows that a part of the premises was encumbered by a privilege, in behalf of the sisters of the former owner of the land. And the arbitrators were right ill taking that incumbrance into account, in making an equitable partition between the parties to the submission

*185Neither will it constitute any defence, if they are allowed, to examine Judge Jay, to show that after the award had been published, he dissented from it. For, as Judge Vark and Judge Constant, the other two arbitrators, were, by the terms of the submission, authorized to make the partition without his consent, the withdrawal of his consent would not have availed the defendants, even if it had taken place before the award had passed beyond.his control. And the defendants’ solicitor having neglected to furnish a list of their witnesses, to the adverse party, before the commencement of the examination, as required by the rules of the court, it was improper to give the defendants leave to examine any witnesses they pleased ; without any statement in their affidavits as to who their witnesses were, and what they expected to prove by them.

Being satisfied that if the defendants have any defence, in this case, it is merely technical, and not meritorious, and that after a regular decree, they ought not to be let in to set up such a defence, even if the objection is well taken that the arbitrators were not sworn, which is at least doubtful, I think these complainants ought not to have been subjected to the delay and expense of further litigation under the circumstances of this case. I must, therefore, reverse the order appealed from, with costs. And the application of the defendants to vacate the decree, and to open the order to close the proofs, must be denied, with costs to be taxed.