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Salomon v. Salomon

134 N.Y.S. 648 Court N.Y. App. Div. Decision date 1912-04-04 English

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SALOMON v. SALOMON et al.
(Supreme Court, Appellate Division, First Department.
April 4, 1912.)

Headnote

1. Arbitration and Award (§ 73[1] )—Judgment on Award—Appeal.
Where a copy of an arbitration award in favor of an estate was served on the executor, and no motion was made to modify or correct it within three months, as provided by Code Civ. Proc. §§ 2375, 2376, or at any other time, it was not reviewable.
[Ed. Note.—Eor other cases, see Arbitration and Award, Cent. Dig. §§ 368-398; Dee. Dig. § 73.*]
2. Appeal and Error (§ 877*)—Persons Who mat Complain of Error.
Defendant cannot complain on appeal that the award, on which judgment was entered against him individually, improperly credited him with an amount which was due him as executor.
[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3560-3572; Dec. Dig. § 877.*]
Appeal from Trial Term, New York County.
In the matter of the 'arbitration of a claim of Salomon Salomon against Solomon G. Salomon and another. From a judgment entered upon the award, defendants appeal. Affirmed.
Argued before INGRAHAM, P. J., and EAUGHLIN, MILLER, McLaughlin, and downing, jj.
B. E. Einstein, for appellants.
Leo Oppenheimer, for respondent.

We think, that, fairly construed, the award in favor of the respondent was a separate award against each of the appellants for the respective amounts separately stated in the award.

[1] The award in favor of the estate of Gustave Salomon against the respondent is not before us. A copy of that was served on the executor on January 28, 1911, and no motion was made to modify or

p. 649
correct it within three months, as provided by sections 2375 and 2376 of the Code of Civil Procedure, or at any other time. The notice of motion in this case was for judgment on the award against the appellants, and the appeal is by them individually.

[2] The appellant, Solomon G. Salomon, cannot complain because a sum found due- the estate of which he is executor in a separate award was deducted from the sum found to be owing the respondent by him individually, and, of course, the respondent is not in a position to complain. We are not now concerned with the question whether the estate of Gustave Salomon is concluded by that offset.

The judgment should be affirmed, with costs.