Borrowe v. Milbank

Headnote

A lot of land, subject to a lease containing a covenant of renewal, at a rent to be agreed upon by the parties, or fixed by arbitration, is not an “ unencumbered” lot, and when sold to the tenant holding the covenant such lot cannot be deemed to have been sold as an '* unencumbered'’ lot.

To state, in a pleading, the nature and source of the information upon which the party relies in making an averment of facts on information and belief, does not vitiate an independent averment of such facts.

Nor does it detract from the force of such averment, that the clause of the pleading in which it occurs, refers, e. g., by the use of the word “ therefore,” to the antecedent clauses, in which the grounds of the information and belief are stated.

In an action brought to set aside an award of an umpire, to whom it was submitted to value a lot of land at its full and fair worth at private sale, considering the same as an “ unencumbered lot,” the complaint charged that his valuation “ was not made upon considering the same as an unencumbered lot, but . . . . at a less value, and such valuation was without his powers as umpire.”

Held, upon demurrer, that the complaint sufficiently showed that the umpire had exceeded his authority.

When an arbitrator or umpire exceeds his authority, the effect of his act to avoid his award is the same, whether the error was committed consciously or through mistake. (Reported in 6 Abb. Pr. R. 28.)