In re Di Carlo — 13 N.Y.S. 83

Majority

p. 83

In re Di Carlo et al.

(Supreme Court, General Term, First Department.

January 16, 1891.)

Headnote

Setting Aside Award—Jurisdiction.

The court cannot acquire jurisdiction to set aside an award made in execution of an agreement between parties, and not in pursuance of a submission, under Code Civil Proc. N. Y. §§ 2366, 2374, otherwise than by action; and an order denying a motion to vacate such award will be reversed, and the motion dismissed.

Appeal from special term, New York county.

Motion by Filippo di Carlo to vacate an award made by arbitrators in pursuance of a submission, inter partes, of certain matters in controversy between the said Filippo di Carlo and the Williamsburgh City Fire Insurance Company. The motion was denied, and the said Filippo di Carlo appeals.

Argued before Van Brunt, P. J., and Brady and Daniels, JJ.

Robert W. Todd, for appellant. Osborn E. Bright, for respondent.

We do not see how the court can acquire jurisdiction to set aside this award upon motion. It is not the result of an arbitration under the Code, and therefore the provisions of the Code were not applicable to it; and it is only where it is expressly provided by statute that the court may acquire jurisdiction by motion that it can acquire jurisdiction otherwise than by action. This arbitration not being a statutory arbitration which could possibly result in a judgment, as already suggested, the provisions of the Code as to motions in respect to the award do not apply; and, if any injustice has been suffered upon the part of the moving party, such injustice must be redressed by action. This objection, however, it does not appear was taken in the court below, and therefore we think that the order appealed from should be reversed, without costs, and the motion dismissed. Alt concur.