Beach v. Sterne — 51 N.Y. St. Rep. 819

Majority

p. 819

In the Matter of the Arbitration of Charles F. Beach, Jr., App’lt, v. Simon Sterne, Resp’t.

(Supreme Court, General Term, First Department,

Filed February 17, 1893.)

Headnote

1. Arbitration — Award.

A document delivered by an arbitrator, stating at length his views on the various questions involved in the controversy, written at the special request of one of the parties, without objection by the other, and received by both parties as an opinion, and concluding with the words “ as a result the arbitrator decides that B. has no claim upon 8., and tue amount stipulated as being due should be paid by B. to S.” is not an award within the meaning of the Code, and does not render the arbitrator functus officio and incapable of making a valid award, duly executed as required by law.

(Flannery v. Sahagian, 134 N. Y., 85 ; 45 St. Rep., 598 , distinguished.)

2. Same — Estoppel.

The party requesting the arbitrator to give his views on the question involved is estopped from claiming that the opinion so rendered is an award.

Appeal from an order of special term confirming an award of an arbitrator and ordering judgment for the respondent against the appellant, and from the judgment entered in pursuance of said order.

May 27, 1892, the parties entered into an arbitration, pursuant to title 8 of chapter 17 of the Code of Civil Procedure. The arbitrator took the evidence and heard the arguments offered in behalf of the litigants. Afterwards, and on the 19th of July, 1892, he wrote the attorneys for the parties, suggesting “ that it might be ad visible to decide it, the controversy, in favor of one party, as against the other, without giving any reasons, findings or indulging in any comments. * * * if both parties insist upon it, I shall give my views, in wilting, upon the various issues.” The attorney for Mr. Sterne replied, “I shall be entirely satisfied to have the case of Beach v, Sterne decided without opinion.” The counsel for Mr. Beach wrote “ I cannot feel that it would be just to my client, whether the decision is in his favor, or against him, if he does not receive from you a full statement of your view of the case, your conclusions as to the facts, and the reasons which have led to your final determination.” August 3d, the arbitrator wrote the attorney for Mr. Beach that he had been out of the city for three or four days, and also stated: “ Prior to my departure, I dictated an opinion in the Matter of Beach v. Sterne, deciding adversely to your client.” On the same day Mr. Beach’s attorney replied, stating, among other things: “ I have just received your note of to-day. * * * At the same time, I cannot help feeling that Mr. Beach is entitled to the opinion which I felt it my duty to ask you to give. Will you kindly

p. 820

have your stenographer make a copy of it and inclose it to him, Beach, at his office in the Mills building?'”

On the same day the arbitrator delivered a document to the appellant, which he acknowledged under the date of August 8th, as follows: “I have received copy of your opinion, dated August 3, 1892, in the above entitled matter. Mr. Turner, who went away on his vacation before the opinion reached us, and who will be absent until about the first of September, asked me to write you, for him, when the opinion came to hand, acknowledging its receipt, and requesting you to do him the favor to reserve until his return opr right to ask for a reargumeut. We shall, if Mr. Turner, upon consideration, determines that it is proper, make such a motion as soon after he gets back as it is possible to prepare the papers.” The document concludes as follows: “As a result, the arbitrator decides that Mr. Beach has no claim upon Mr. Sterne, and that the amount stipulated as being due should be paid by Mr. Beach to Mr. Sterne. ” This document was signed by the arbitrator, but not acknowledged. September 3, 1892, the arbitrator signed, sealed, and duly acknowledged an award, as required by § 2372 of the Code. Afterwards the attorneys for Mr. Sterne moved, on notice, at special term, for an order confirming the award. Mr. Beach, upon an affidavit made by himself, setting forth substantially the foregoing facts, opposed the confirmation, upon the ground that the powers of the arbitrator ceased upon the delivery of the document dated August 3, 1892. The award was confirmed at special term, and a judgment ordered.

Herbert B. Turner, for app’lt; E. Ellery Anderson, for resp’t.

The rule is well settled that when an arbitrator has delivered his award his power is at an end. Flannery v. Sahagian, 134 N. Y., 85 ; 45 St. Rep., 598 . The document of August 3d, signed by the arbitrator, discusses the question of fact involved in the litigation upon the decision of which the rights of the parties turned. It is, in matter and form, an opinion, and differs as widely from an award as a judicial opinion does from a formal decision, which is the basis of the judgment to be entered ; and it is apparent from the correspondence between the arbitrator, the attorneys for the parties and Mr. Beach, that all of them understood that it was intended as an opinion. They all speak of it as such, and it was at the request of _Mr. Beach and his attorney that a written opinion on the merits was delivered.

The opinion was not authenticated in the mode required by § 2372 of the Code so that a judgment as provided for in the submission could be entered upon it. The arbitrator, at the request of the appellant, delayed further action until after the first of September, when his attorney would return to the city; and under such circumstances he should not be heard to say that the opinion was a formal award, and that the arbitrator was without power to make one in accordance with the statute. Had the document of August 3 been intended by the arbitrator to be a final award, and delivered to the parties or their attorneys, and accepted by them

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as such, the position oE the appellant would be tenable. But it was not so intended by the arbitrator, or so understood by counsel ; and the judgment entered pursuant to the order of the special term should be affirmed, with costs.

Van Brunt, P. J., and O’Brien, J., concur.