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In re St. John's Guild

152 N.Y.S. 685 Court N.Y. App. Div. Decision date 1915-04-09 Docket No. 7087 English

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p. 685
In re ST. JOHN’S GUILD et al.
(No. 7087.)
(Supreme Court) Appellate Division, First Department.
April 9, 1915.)

Headnote

1. Arbitration and Award <@=28—Oath of Arbitrators—Statute.
Under Code Civ. Proc. § 2369, providing that before hearing any testimony arbitrators must be sworn, unless the oath is waived by the written consent of the parties to the submission or their attorneys, where arbitrators were not so sworn, such waiver not having been made, the objection was fatal on appeal from an order denying a motion for judgment upon their award.
[Ed. Note.—For other cases, see Arbitration and Award, Cent. Dig. §§ 141-146; Dec. Dig. <@=28.]
2. Arbitration and Award <@=71—Oath of Arbitrators—Rehearing by Same Arbitrators—Statute.
Under Code Civ. Proc. § 2374, providing that where an award of arbitrators is vacated, and the time within which the submission requires the award to be made has not expired, the court in its discretion may direct a rehearing, where the only objection to the award is that the arbitrators were not sworn, no waiver of the oath having been filed, the time set by the submission not having expired, a rehearing before the same arbitrators may properly be directed, since their failure to take the prescribed oath does not indicate partiality or incompetence.
[Ed. Note.—For other cases, see Arbitration and Award, Cent. Dig. §§ 359-363; Dec. Dig. <@=71.]
Appeal from Special Term, New York County.
Arbitration between S't. John’s Guild and Charles F. Lass and others. From an order denying motion for judgment upon an award of arbitrators, St. John’s Guild appeals. Modified.
Argued before INGRAHAM, P. J., and CLARKE, SCOTT, DOWLING, and HOTCHKISS, JJ.
John W. Weed, of New York City, for appellant.
William F. Kimber, of New York City, for respondents.

[1] The objection that the arbitrators were not sworn is a fatal one, the oaths not having been waived in writing. Code

p. 686
Civ. Proc. § 2369; Hinkle v. Zimmerman, 184 N. Y. 114 , 76 N. E. 1080 .

[2] The case appears to be a proper one, however, in which to direct a rehearing before the same arbitrators, as authorized by section 2374, Code Civ. Proc. Their failure to take the prescribed oaths did not, under the circumstances, indicate partiality or incompetence.

The order appealed from will therefore be modified accordingly, with $10 costs and disbursements to the appellant. Settle order on notice.

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