Majority
p. 370Platt against N. & I. Smith. NEW-YORK, October, 1817.
Headnote
Words written in ab arTbythi dwVncimsra-a considered10 as ward, and to reconsiruction, as if inserted in the bwheret' in a copy or connedario one 8of woerdPartMim” bnun the other !hounVl'toh the come time,‘n inserted,<7iTélocopy was held to be immaterial.THIS was an action of debt on an award, tried before Mr. Justice Fan Ness, at the New-York sittings, in November, 1816.
The arbitrators made an award, under their hands and seals, reciting the bond of submission, and by which they awarded the defendants to pay to the plaintiff’ 2,656 dollars and 25 cents, and, also, that on the delivery of the award, they should pay to the arbitrators, 30 dollars, being one halt of the expenses of the arbitrators, &c. and that the parties, on payment of the said sumsi should execute mutual releases, &c. In the margin of the awal’d the following words were written by the arbitrators: “ Gilbert Platt is to give up the note which he holds against N. Smith & Co. The store remains joint property. The outstanding debts to be equally divided.’’
A counterpart award was delivered to the defendants, in which the word dollars was omitted after the words and figures “ two thousand six hundred and fifty-six JyL”—But the other part, in which the word dollars was properly inserted, was, at the time, shown to the defendants.
The jury, under the direction of the judges, found a verdict for the plaintiff, subject to the opinion of the court on the case.
Johnson, for the plaintiff.
P. W. Radcliff, contra.
We are of opinion, that the words written in the margin of the award, by the arbitrators, are to be considered as part of the award, and to receive the same construction as if they had been inserted in the body of the instrument. The words form a distinct sentence, and the meaning is the same, whether they be read in one place or another, after any distinct sentence. Besides, these words are merely explanatory of what would have been the operation and effect of the award, if they had not been inserted.
We are of opinion, also, that the omission of the word dollars in the counterpart award delivered to the defendants is not
p. 371
catal, when taken in connexion with the proof, that the other part, in which there is no such omission, was shown to the defendants when they received the copy of the award. The plaintiff is, therefore, entitled to judgment for the sum awarded to him, with interest, but not for the thirty dollars, awarded to be paid by the defendants to the arbitrators. There is no evi~ dence that the plaintiff has paid that sum for the defendants; and if he had paid it, it is very questionable whether he could recover it in an action on the award. it does not even appear that the plaintiff has paid his own half of the charges of the arbitrators. A mere liability to pay, without actual payment, gives no right of action by either parly against the other.
Judgment for the plaintiff.