People ex rel. Union Insurance v. Nash — 54 N.Y. Sup. Ct. 542

Majority

p. 542

THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE UNION INSURANCE COMPANY OF PHILADELPHIA and Others, Appellants, v. STEPHEN P. NASH and Others, as Arbitrators, Respondents.

Headnote

Mandamus — not the proper remedy to compel a/i'bitrators to act.

In this application for a peremptory mandamus, it appeared that an arbitration had been agreed upon between the relators and certain other parties, good at common law, though not framed pursuant to the provisions of the Code in respect to arbitrations.

Held, that a mandamus-was not a proper remedy by which the arbitrators, refusing to act, could be required to perform their functions.

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

Tread/weTl Cleveland, for the appellants.

Stephrni P. Wash and James E. Carpenter, respondents, in person.

Butler, 8Ull/man c& Hubba/rd, for the Continental Insurance Company, 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 Dimmick, 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 arbitrations. But that these provisions of the Code were not intended to guide and govern the arbitration is evident because the operation of many of them 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 establishes, which authorized the

p. 543

court by this proceeding to enforce tbe rights of parties under such an agreement. 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 mere private contracts. (People ex rel. Coppers v. Trustees, etc., 21 Hun, 195 .) It may be Risked what remedy a party has if the arbitrators improperly refuse to perform their functions. It is a sufficient answer that the remedy by ma/ndamus 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 be afforded by ma/ndamus.

The order should be affirmed, with costs and disbursements.

Bartlett and Macomber, JJ., concurred.

Order affirmed, with costs and disbursements.