People ex rel. Union Insurance v. Nash — 15 N.Y. St. Rep. 166

Majority

p. 166

People ex rel. The Union Insurance Co. et al., App’lts, v. Stephen P. Nash et al., Arbitrators, etc., Resp’ts.

(Supreme Court, General Term, First Department,

Filed March 2, 1888.)

Headnote

1. Mandamus—Will not lib to enforce prívate contract.

Mandamus is appropriate where a public duty is imposed, or some act specifically directed by statute, but it will not lie to enforce private contracts.

2. Same—Arbitrator cannot be compelled to act.

The court cannot, by mamdamus, compel arbitrators to act where the arbitration agreement is a simple private contract between the parties to it, viz., a common law arbitration.

Appeal from order denying motion for a peremptory mandamus, requiring certain arbitrators to proceed under an arbitration agreement.

Treadwell Cleveland, for app’lts; Stephen P. Nash and James E. Carpenter, in person; Butler, Stillman & Hubbard, for the Continental Insurance Co., one of the parties to said arbitration agreement.

In view of the conclusion arrived at as to the power of the court to entertain this proceeding, it is not at all necessary to consider the question as to whether Lorenzo Dimmich, one of the parties to the arbitration, could revoke the same, notwithstanding the clause in the agreement waiving revocation.

We do not see how the court can compel the arbitrators to act. The arbitration was a simple private contract between the parties to it. It is true that it might be claimed to have been framed pursuant to the provisions of the Code in respect to arbitration. But that these provisions of the Code were not intended to guide and govern the arbitration is evident because the operation of many of its provisions are expressly stipulated against. The arbitration, therefore, seems to be a common law arbitration; and it is the enforcement of a common law arbitration which is sought to be attained by this writ of mandamus.

We are not aware of any rule, nor has our attention been called to any principle, which has been established which authorized the court, by this proceeding, to enforce the rights of parties under such an agreement.

p. 167

Mandamus, it has been held, is appropriate where a public duty is imposed, or some act specifically directed by statute, but it will not lie to enforce private contracts. People ex rel. Coppers v. Trustees, etc., 21 Hun, 184 .

It may be asked what remedy a party has, if the arbitrators improperly refuse to perform their functions. It is a . sufficient answer that the remedy by mandamus does not seem appropriate, as it is not sought to enforce any public duty, or any act specifically directed by statute, but simply to carry into effect the private contract of the parties to the arbitration agreement. .

What the proper remedy of the relator is to procure redress it is not necessary for us to advise.

It seems to be clear, for the reasons above stated, that no relief can he afforded by mandamus.

The order should be affirmed, with costs and disbursements.

Macomber and Bartlett, JJ., concur.