Majority
p. 92DIBBLE against CAMP. Supreme Court, First Department, First District; General Term, January, 1871.
Headnote
Arbitration.—Review of Judgment on Award.The party aggrieved by the judgment entered on an award of arbitrators under the statute, cannot review it by making a case and appealing, except for the errors specifically provided for by the statute.
Appeal from a judgment.
Calvin B. Dibble, Barzilla G. Worth, and George M. Dewey, entered into an agreement with Calvin B. Camp, by which the former agreed to sell the latter a quantity of cotton. A part of the cotton having been destroyed by fire, while the process of delivery was going on, a controversy arose as to whether the delivery was complete, and entitled the sellers to full payment.
These matters of difference were submitted by them to arbitrators by mutual bonds, under the provisions of the Revised Statutes, stipulating that judgment might be rendered in the supreme court, upon the award which should be made pursuant to the submission. The arbitrators having made their award in favor of the sellers, against Camp, judgment was entered upon it, in the supreme court, in the usual form.
Camp thereupon appealed from the judgment to the court at general term; and made a case, containing the
p. 93I. This appeal is from the judgment entered on the award of the arbitrators, solely on a case made by the appellant, containing simply the testimony taken before the arbitrators, and a copy of the judgment roll, and not an objection or exception of any kind, and no attempt has been made to set aside or modify the award, and it is conceded by the appellant that there are no grounds therefor. There is no authority for such an appeal, either in the Code of Procedure or otherwise. The proceedings in arbitrations under the Revised Statutes are governed entirely thereby, and they provide the only way in which an award by arbitrators or the judgment rendered thereon may be reviewed, and no such appeal as this is authorized by the said statutes (see printed case; 2 Rev. Stat., 4 ed., p. 774, ch. 8, part 3, §§ 10, 11, 12; Code of Pro., § 471; Smith v. Cutler, 10 Wend., 590 ; Ketcham v. Woodruff, 24 Barb., 147 ). And there is no appeal from an award of arbitrators under said statutes, except from an order on a motion for the purpose of setting aside or modifying said award, and there is no appeal from a judgment on an award of arbitrators in any case; but such judgment can only be reviewed by writ of error (Ketcham v. Woodruff, 24 Barb., 147 ; Isaacs v. Beth Hamedrash Society, 19 N. Y., 584 ; Freeman v. Kendall, 41 Id., 518 ; Daggett v. Keating, decided at the late May term of the court of appeals, but hot yet reported). II. This court has no power to hear the appeal; its power to review or intermeddle with an award of arbi
submission and other parts of the judgment roll, and also testimony taken by the arbitrators.
The judgment included costs and expenses which had been allowed by the award, and also an allowance in addition to costs, made by order of the court.
M. M. Vail, for the respondent.
p. 94trators, made under a submission pursuant to the provisions of the Revised Statutes, is limited by the plain words of said statutes, and as they only provide that such an award may, on motion, be vacated or modified, for corruption, partiality or gross misbehavior in the arbitrators, or for some palpable miscalculation, mistake, or irregularity by them, and contain no warrant whatever for this appeal, the court has not the power, and ought not to entertain it. And the court will not review or intermeddle with an award of arbitrators upon the merits in any case, where, as in this case, none of the objections thereto exist, specified in sections 10 and 11 of the Revised Statutes, supra (Smith v. Cutler, 10 Wend., 590 ; Emmet v. Hoyt, 17 Id., 413 ; Cranston v. Kenny, 9 Johns., 212 ; Jackson v. Ambler, 14 Id., 105 ; Lowndes v. Campbell, 1 Hall, 598 ; Mitchell v. Bush, 7 Cow., 185 ; Perkins v. Giles, 53 Barb., 342 ; Turnbull v. Martin, 37 How. Pr., 20 ). II. On the merits the judgment should be affirmed (citing many authorities). I. The arbitrators erred in matters of law, in finding that the forty-nine bales of cotton, part and parcel of the one hundred and nineteen bales embraced in the contract, had passed by delivery from the plaintiffs to the defendant. Property does not pass unless the sale be complete. It is not complete so long as anything remains to be done to the thing sold, to determine either its quantity or quality, or any other thing yet undetermined, upon which the price depends (1 Pars, on Contr., 441; Pars. Com. L., 48; Outwater v. Dodge, 7 Cow., 87 ; Rapelye v. Mackie, 6 Id., 250; Ward v. Shaw, 7 Wend., 404 ; Fitch v. Beach, 15 Id., 222; Hart v. Tyler, 15 Pick., 17 ; Davis v. Hill, 3 N. H., 382 ; Shindler v. Houston, 1 N. Y.
Nelson Cross, for the appellant.
p. 95[1 Comst.], 273; Gerard v. Prouty, 34 Barb., 454 ). The rule is the same where there is a delay in delivering, by request and agreement (Pars. Com. L., 47). If goods be stolen, burnt, or otherwise damaged or destroyed after sale and previous to delivery, the loss is the seller’s (Ib. ; see also decision by Ingraham, J., in Gerard v. Prouty, 34 Barb., 454 ). II. The submission does not. authorize the arbitrators to award to the plaintiffs their costs and expenses of the proceedings in the arbitration. Hence, in making such award the arbitrators exceeded their authority (People ex rel. Howard v. Newell, 13 Barb., 97 ; Matter of Vanderveer, 4 Den., 249 ). III. The allowance of five per cent, upon the amount of the award—viz: eight thousand four hundred and eighty-four dollars, making one hundred and seventy-four dollars and twenty cents—to plaintiff’s attorney, and permitting the same to be entered in the judgment upon the award (see judgment roll), is unauthorized, and consequently erroneous. The authority vested in the court by statute to tax costs, does not extend to the granting of an extra allowance to the attorney of the winning party, to be carried into the judgment (see Act of 1854, ch. 270, p. 592). IV. The award of the arbitrators should have been against the plaintiffs and in favor of the defendant, upon the ground of the non-delivery of the forty-nine bales of cotton in controversy
We are all of the opinion that this judgment must be affirmed. If the plaintiff feels aggrieved at the award, his only remedy is to move the court at special term, either for an order modifying the award, or for an order vacating it; and upon the grounds and in the manner provided by the Revised Statutes. It is conceded by the
p. 96
counsel for the appellant, that he has no statutory grounds for such a motion. He is therefore concluded by the judgment, which can only be reviewed by a writ of error; and he has no right to make a case and appeal thereon, for the purpose of reviewing the award made by the arbitrators on the merits.
The court will not in any case review an award made by arbitrators under the statute, except on the grounds specifically provided by the Revised Statutes, viz: fraud or undue means in procuring it, evident partiality or corruption in the arbitrators, misconduct or excess of power on their part, imperfect award, miscalculation, mistake, or unauthorized award (2 Rev. Stat., 542, §§ 10, 11).
Geo. G. Barnard and Cardozo, JJ., concurred.
Judgment affirmed, with costs.