In re the Arbitration of Bennett — 30 N.Y. St. Rep. 166

Majority

p. 166

In the Matter of the Arbitration of Michael Bennett, Resp’t, with The Union Elevated R. R. Co., App’lt.

(Supreme Court, General Term, Second Department,

Filed February 10, 1890.)

Headnote

1. Eminent domain—Arbitration.

The land owner and the railroad company agreed to submit the question of damages to arbitaration, judgment not to be entered until ten days after the cars were running, and an appeal by either party to be limited to ten days after entry of judgment. Held, that an application for confirmation made within the ten days, so as to expedite a proposed appeal by the company, was not a violation of this provision.

2. Same.

The agreement also provided that the arbitrators might refuse to hear testimony and might proceed in any manner that a majority might decide. The arbitrators voted to receive no testimony. Held, that the use by one of the arbitrators, without the land owners cognizance, in support of his views, of information obtained from the questions and answers in a similar case was not a violation of the agreement.

p. 167

Appeal from judgment in favor of Michael Bennett, entered upon the award of arbitrators.

.George W. Wingate, for app’lt; J. J. Leary, for resp’t

The Union Elevated R. R. Co. constructed its road along Fifth avenue in Brooklyn in firont of Michael Bennett’s property. The company and Bennett agreed in writing to arbitrate the question of the damages resulting to Bennett’s property thereby.

By the agreement the arbitrators were to determine the method of trial and were at liberty to refuse to hear • witnesses, though they might do so. The judgment was not to be entered of record until the expiration of ten days after the cars should be run upon the road, and upon failure to pay the award by the company.

There was a provision that if either party wished to appeal such appeal must be taken within ten days after the judgment was rendered. The company desired an appeal and the land owner-applied on the ninth day after the=award was made for its confirmation with a view of the entry of an immediate judgment, so as to expedite this appeal.

This did not violate either the spirit or letter of the arbitration agreement. The intent of the parties was to await the entry of judgment until ten days after the cars run. It was a term of credit to the company and not a means of postponing the entry of judgment when it was to be the basis of an appeal. When the award was confirmed the cars had been running for a considerable period.

The arbitrators voted to receive no testimony. After the submission it is claimed that evidence was received on the part of' Bennett. The proof fails to substantiate this. The arbitrators-differed as to the question submitted and one of the arbitrators-had questions and answers in another case of damages to abutting; owners, and he read these in support of his views.

Neither Bennett, the railroad company, or their counsel was cognizant of this fact. The discussion of the evidence in another case was not a violation of the arbitration agreement, which contains this clause:

“ Second That the arbitrators by a majority vote may exercise their discretion as to the manner and way in which to inform, themselves of the matters and things in dispute. They may refuse to hear witnesses and counsel and proceed to a final determination in whatever manner they may by a majority vote, decide.”

It was not against the meaning or intent of this clause that one of the arbitrators urged in support of his views information acquired by the answers and opinion of other persons in a legal trial. There was no reception of the minutes as evidence. The arbitrators could inform themselves upon the question before them by reading and even conversation with persons well informed or who were supposed to be so.

The case of Halstead, v. Seaman, 82 N. Y., 27 , does not bear

p. 168

on the question. In that case there was no clause authorizing the arbitrators to reject evidence, and it was held that they could not refuse to hear it if offered.

The orders appealed from should, therefore, be affirmed, with costs.

Pratt and Dykman", JJ., concur.