Flannery v. Sahagian — 34 N.Y. St. Rep. 887

Majority

p. 887

Patrick J. Flannery, Resp’t, v. Aslan Sahagian, App’lt.

(Supreme Court, General Term, Second Department,

Filed December 8, 1890.)

Headnote

1. Arbitration—Award.

The parties to a building contract agreed to submit to arbitration a controversy as to the amount due thereunder. The arbitrators decided that the contractor was entitled to the last payment. Later in the day a formal decision, properly acknowledged, and stating the amount found to be due, was delivered to the contractor. Held, that but one award was made.

2.,Same—Waiver oe oath.

Where the oath prepared for the arbitrators was destroyed upon their stating that they would swear to their report, and the hearing proceeded to adjudication without objection or request for an oath of office, Held, hat the oath was waived.

Appeal from order denying defendant’s motion to set aside an award of arbitrators, from order confirming award and from judgment entered on the last order in favor of plaintiff for $1,350.04.

The plaintiff and defendant having a controversy upon the amount due on contract, and for extra work on a building in Yonkers, and for damages in consequence of the negligent manner in which the work was done, agreed to submit the matter in controversy to four arbitrators. '

The arbitrators met and after questioning the parties and examining the plans, specifications, architect’s certificate and the building, rendered the following decision :

“Yonkers, FT. Y., December 30, 1889.

“ We, the undersigned, Messrs. E. K. Baldwin, James W. Prendergast, F. Durand and J. 0. Campbell. Jr., being selected by Messrs. P. J. Flannery and A. Sahagian as a board of arbitrators, do report as follows: We find, according to the plans, specifications and certificates issued by the architect, that Mr. P. J. Flannery is entitled to his final payment.

“E. K. Baldwin,

“ James W. Prendergast,

“ Frederick Durand,

“ J. C. Campbell, Jp

“ Sworn to before me this 30th) day of December, 1889, j

“ Albro A. Hubbard,

“ Notary Public, Yonkers, N. Y."

A copy of this was given to each party.

Later, on the same day, the arbitrators executed and delivered to plaintiff a formal decision or award, Which was subsequently acknowledged, and which (exclusive of the formal parts), is as follows:

p. 888

“Row, therefore, know ye that we, the arbitrators mentioned in the said submission, having heard the proofs and allegations of the respective parties, and examined the matters in controversy, by them submitted therein, do therefore make this award in writing, that is to say, the said Patrick J. Flannery is entitled to recover of the said Aslan Sahagian the final payment due him on his contract, and as certified' to by George Eayner, the architect; and that such payment amounts to thirteen hundred and eleVen and forty one-hundredths dollars, and interest thereon for seven months, amounting to $38.64, making a total of $1,350.04.”

Defendant claims that there were two awards, and objects to the failure of the arbitrators to take the oath.

Joseph F. Daly, for app’lt; F. X. Donoghue (Martin J. Keogh, of counsel), for resp’t.

There was .but one award made. The question submitted was whether a bill for work and materials was due and owing by the defendant to the plaintiff. This turned upon the fact whether the work was well and sufficiently done according to a contract between the parties. The claim was specified in a bill, which was referred to and described in the submission. The informal decision was only to the effect that the plaintiff was-entitled to the last payment. This was virtually deciding the case, but not sufficient facts were stated upon which to enter judgment. On the same day a formal decision, properly acknowledged, was made and delivered to the plaintiff, stating the amount of- the bill which was found to be due the plaintiff, and being the very bill submitted to the arbitrator. The papers, I think, show that the arbitrator’s oath was waived The defendant had an affidavit or oath of some kind, presumably an oath of office. The arbitrators said they would swear to their report, and thereupon defendant tore up the oath, and the hearing proceeded to adjudication without dissent or further request for an oath of office.

The order confirming the award and the order refusing an application to set it aside should be affirmed, with costs and disbursements.

Pratt, J., concurs; Dykman, J., not sitting.