Jacoby v. Johnston — 8 N.Y. Sup. Ct. 242

Majority

p. 242

HENRY JACOBY, Respondent, v. DAVID JOHNSTON and another, Appellants.

Headnote

Submission to arbitration—when it operates as a discontinuance of an action,— stay of proceedings.

After the commencement of this action, an agreement, under seal, was entered into by all the parties thereto, to “submit all matters involved in said action, and presented by the pleadings therein, to the hearing, determination and decision of three arbitrators,” and “ that the action in the Supreme Court aforesaid, and all proceedings therein, or in relation thereto, shall be stayed pending the award of said arbitrators;” held, that the submission would have effected a discontinuance of the action but for the clause providing for a stay of proceedings; that this operated as a perpetual stay until the making of the award, which would at once effect a final discontinuance of the action.

Appeal.from an order made at Special Term, denying a motion made by the defendants for an order discontinuing the action and striking the case from the circuit calendar. This action was commenced to recover of the defendants damages for an alleged wrongful entry upon certain lands of the plaintiff, and removing therefrom trees, timber, etc. After issue was joined, an agreement, under seal, was entered into by all the parties, submitting all matters involved in said action, and presented by the pleadings therein, to the hearing, determination and decision of three arbitrators.

The agreement afterwards provided, “ that the action in the Supreme Court aforesaid, and all proceedings therein, or in relation thereto, shall be stayed pending the award of said arbitrators.” Subsequent to entering into the agreement, the plaintiff noticed the action for trial, and put it upon the circuit calendar.

The defendants moved the Special Term for an order discontinu

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ing the action, and striking it from the circuit calendar. This motion was denied, and from the order thereon, the defendants appealed.

J. A. Thompson, for the appellants.

-, for the respondent.

The submission to arbitration of the subject-matter of this action, was full and absolute. Its effect would have been a discontinuance of the action, but for the clause making special provision in relation to the action. That clause provides, “ That the action in the Supreme Court aforesaid, and all proceedings therein or in relation thereto, shall Toe stayed pending the award of said arbitrators.”

The stay of proceedings thus provided for, indicates an intention not to have the submission operate as an absolute discontinuance, as otherwise it would have done. It does, however, operate as a perpetual stay “ pending the award,” which must be construed to mean until the award is made. The making of the award, in the absence of any stipulation for the entering of judgment upon the same in the action, would at once operate as a final discontinuance of the suit; so that, practically, while the submission remains in force, the suit in court is completely suspended. Neither party has revoked the submission. A revocation, to put an end to the submission, must be made with the same formality as the submission itself.

The submission being in writing and under seal, it must be revoked with like solemnity.^[1] The effect of the submission, while remaining in force, is to stay, absolutely, all proceedings in the suit.^[2] The plaintiff was not, therefore, at liberty to take any steps in the action, after the submission. The motion to discontinue, under the circumstances, was properly denied, but the cause

* Van Antwerp v. Stewart, 8 John., 125 ; Howard v. Cooper, 1 Hill, 44 ; Robertson v. M’Neil, 12 Wend., 578 , 582.

† † Larkin v. Robbins, 2 Wend., 505 ; Camp v. Root, 18 John., 22 ; Jordan v. Hyatt, 3 Barb., 275 ; Wells v. Lain, 15 Wend., 99 ; Van Slyke v. Lettice, 6 Hill, 610 ; 11 How., 355 .

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should have been stricken from the calendar, under the stay of proceedings. The order appealed from, should be modified so as to deny the motion for discontinuance, and grant that part asking that the case be struck from the calendar, and, as so modified, affirmed, without costs.

Daniels and Beady, JJ., concurred.

Order as modified affirmed, with costs.