Herbst v. Hagenaers — 17 N.Y.S. 58

Majority

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Herbst v. Hagenaers.

(Supreme Court, General Term, First Department.

December 31, 1891.)

Headnote

Arbitration and Award—Indefinite Award.

Under a submission of the question of compensation to which either partner in a firm might be entitled in consequence of the dissolution thereof, an award to one of them of a sum certain, and of such further sum as might be due him on a certain day from the firm, is too indefinite to sustain a judgment, and must be set aside.

Appeal from special term, Hew York county.

Action by Robert Herbst against Lionel Hagenaers. From a judgment for defendant, and from an order denying a motion to vacate an award, plaintiff appeals.

Reversed.

Argued before Van Brunt, P. J., and Barrett and Andrews, JJ.

Koadley, Zauterbach & Johnson, (Wm. K. Cohen, of counsel,) for appellant. Russell & Percy, for respondent.

Prior to April, 1891, the parties to this motion had been copartners, and on the 18th of April said partnership was by mutual consent dissolved, and' the parties agreed to submit to arbitration the„question as to what their respective interests in said copartnership were, and also what compensation, if any, either party was entitled to in consequence of the dissolution of the partnership, and Mr. C. C. Abell and Mr. 0.

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judgment to be entered upon their award should be final in the premises, and that it should be filed in the supreme court as and for a judgment on the merits of the question in controversy. The arbitration met, and beard the proofs, and on the 29th of April, 1891, made an award by which it was provided that the appellant, Herbst, was to engage to pay all the liabilities of the, firm existing on the 18th of April, 1891, and to release the respondent, Hagenaers, from all responsibility to said firm on and from that date, and that the appellant was to collect the firm’s outstanding accounts. The award further provided that the amount which might be due the respondent from the firm on the 18th of April, 1891, irrespective of the amount of the award thereafter given, was to be paid to him in excess of the amount of the award, which amount and the award were to be paid in cash within 10 days. The appellant was to continue the business in the firm name, and the firm’s books and papers were to remain his property, as provided by the copartnership agreement, and the sum of $6,336 was awarded to the respondent, which did not include the amount due to the respondent on the books of the firm on the 18th of April, 1891. On the 6th of May, 1891, the arbitrators reconvened, and made a supplemental award. Motions were thereupon made to vacate the awards upon various grounds, and also a motion to confirm the same. The motion to vacate was denied, and the motion to confirm granted, and judgment was entered upon the original award, irrespective of the supplemental award, and from the order denying the motion to vacate said judgment this appeal is taken.

The grounds upon which it is sought to vacate were, first, that the arbitrators illegally refused to hear proper and legal testimony; that they are chargeable with gross partiality and misconduct; that they exceeded their powers; that the award is not certain, final, and conclusive; that the pretended supplemental award is unauthorized and void; and, even were the supplemental award valid, the entire award is so grossly excessive as to be fraudulent in law; and another ground, which it is not necessary to state here. Ho action having been taken upon the supplemental award, and no judgment entered hereon, it is not necessary to discuss the question as to the right of the arbitrators to make such award. The claim that the arbitrators illegally refused to hear evidence is not sustained by the record. It is true that the appellant, by his affidavit, claims that the arbitrators refused to hear evidence which he offered. But it is to be observed that his affidavit is somewhat indefinite in this particular, and it is denied both by one of the arbitrators and by the respondent that he ever offered to produce such evidence or testimony, and it is denied by the arbitrator that the letter of the appellant offering to produce testimony was ever received by him. There is, therefore, no ground made out upon the papers for vacating the award for this reason. The charge of gross partiality and misconduct is not made out. It is claimed upon the part of the appellant that one of the arbitrators was under the domination of the other, but there is no evidence of that kind. Neither is there any evidence that the arbitrators exceeded their powers. Neither is the claim that the refusal to allow the appellant’s stenographer to take a record of the proceedings well taken. It would certainly be rather remarkable if the record of a proceeding semi-judicial in its nature was to be kept by the employe of one of the parties. But that the award is not certain, final, and conclusive seems to be established upon its face. It is provided by section 2374 of the Code that in certain cases the court specified in the submission must make an order vacating the award; and, among others, where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject-matter submitted has not been made. How, the question submitted to the arbitrators in this case was the question what the respective interests of the copartners in said copartnership were, and also what compensation, if any, either party was entitled to in consequence of the

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dissolution of the partnership; and it was provided that a judgment might be entered upon this award. Therefore there was nothing to be left undetermined or indefinite, so that it might not be executed as a judgment of the court. We find that in the award a definite sum is awarded to the respondent, and an indefinite sum, namely, the sum which might be due to the respondent on the 18th of April, 1891, from the firm of which he was a member, irrespective of the amount which had been awarded. • This is clearly so indefinite that no judgment whatever could be entered upon the same. The submission was that they should determine the respective interests of the partners in the firm, and what compensation, if any, either party was entitled to in consequence of the dissolution. The arbitration was intended to wind up the affairs of the concern, and to settle the rights of the parties, and determine what amount of money the respondent should receive from the appellant upon this dissolution. The award left the whole question open, by providing that what was due from the firm to the respondent on the 18th of April, 1891, should be paid to him, without fixing any amount. This was attempted to be done by the supplemental award. But, as already suggested, no judgment having been entered upon the supplemental award, it is liot necessary to consider it here, although it would seem that by the making of the first award the office of the arbitrators ceased. The award not having been final and definite upon the subject-matter submitted, the court was bound to set it aside as an imperfect and incomplete adjudication. We think, therefore, for these reasons that the motion to vacate the award should have been granted. The order should be reversed, with $10 costs and disbursements, and the motion to vacate granted. All concur.