Myers v. Dixon — 2 N.Y. Super. Ct. 456

Majority

p. 456

Stephen Myers versus Elias Dixon.

Headnote

Although an action of debt upon an arbitration bond, cannot be sustained, where the award is not made within the time specified in the condition, and the parties have, by a new agreement, extended the time for making the award; yet where the declaration sets forth the bond, the enlargement of the time by the new agreement, an award within the extended period, and a breach of its requirements, on the part of the defendant, it contains a complete cause of action.

To an action of debt, wherein the above particulars were all set forth, the defendant, by plea, set out the original arbitration bond, and the award, whereby it appeared that the award was not made within the period originally stipulated: Upon demurrer to this plea, it was held not to be an answer to'the declaration—■ no notice being taken in it of the allegations in the declaration, as to the enlarged time.

This was an action of debt, founded upon a submission to arbitration, and the award made in pursuance of it. The declaration, in its first count, set forth, that certain differences having arisen between the plaintiff and the defendant, the parties, by a certain bond of arbitration, bearing date the 9th day of February, 1839, became bound to each other, in a certain penal sum, to abide by the award of certain arbitrators, therein named, who were to decide all matters in controversy between them, and make their award in writing, and under seal, on .or before the ¿5th day of the same month; which time for making the award, (the declaration alleged,) was afterwards, and before the time for making the same expired, to wit, on the 35th day of February, 1839, by consent of the plaintiff and defendant, “ enlarged until the 6th day of March, then next,” it being agreed, by the parties, that the award made within the extended time, should be binding and conclusive upon them. This count then averred, that the arbitrators duly made their award within the time, for that purpose last appointed, determining thereby that the defendant was indebted to the plaintiff in the sum of 1,334 dollars, to be paid by him on or before the 31st of March, 1839, of which the defendant had notice ; yet the said Stephen Myers did not, nor would, at the time, for that purpose in the award appointed, or at any other time, pay

p. 457

to the plaintiff the said sum of 1,324 dollars, or any part thereof, although requested, whereby an action accrued to the plaintiff to recover the amount of said award»

In answer to this count of the declaration, the defendant pleaded that the bond therein set forth, contained a condition, stipulating that the award contemplated should be made by the 25th day of February, 1829; whereas, in point of fact, it was not made until the 6th of March following, as fully appeared by the same, under the hands and seals of the arbitrators. The bond itself and its condition, together with the award, were spread out in extenso upon the plea, which concluded with the usual verification.

The plaintiff demurred generally to the plea, and Mr. George Griffin, in support of the demurrer, insisted that the plea was bad, because it takes no notice of the enlargement of the time for making the award, set forth in the declaration, which was an essential ingredient in the cause of action declared upon. That the enlarged time incorporated itself into the bond,—and a plea which takes no notice of this particular, must necessarily be defective upon general demurrer. [Evans v. Thompson, 5 East. 193. Keating v. Price, 1 John. Cas. 22. Fleming v. Gilbert, 3 J. R 528. Hasbrouck v. Tappen, 15 Ib. 200. Jenkins v. Law, 8 T. R. 87. Brown v. Goodman, 3 Ib. 592, (note.) 3 Dow. and Ry. 444. 2 Barn. and Cres. 179. King v. Hall, 7 Price’s R. 636. 1 Mau. and Sel. 21. 1 Esp. N. P. 35. 5 Bro. P. C. 313. 8 J. R. 193. 2 Chit. Plead. 457.]

Mr. H. Holden, contra, for the defendant,

insisted that the declaration was bad. That the action should not have been brought either upon the bond or the award, but on the submission implied in the new agreement for enlarging the time. The declaration states, that the time for making the award was extended, but it does not tell us how it was enlarged—whether by parol, or by writing. When the time was extended, a new agreement was formed; the old one was abandoned or merged in the new one, and an action of debt, founded upon the original bond, could not be sustained. [3 D. and E. 592, (n.) 9 J. R. 115, 2 Wend. R. 399.]

This case comes before us on a general demurrer to the defendant’s plea to the first count of the declaration. That count sets forth, 1. That mutual bonds of submission to arbitration, dated the 9th of February, 182.9, were executed by the parties, by which the award was to be made, on or before the 25th day of February. 2. That before that period, the time for making the award was extended by the parties to the 6th of March, and that it was agreed, that an award, to be made within such extended time, should be binding. 3. That an award was made within such enlarged time;—and the count then sets forth a breach of the award, on the part of the defendant, in the non-payment of the money awarded. The plea sets forth the bond and its conditions, together with the award, by which it appears that the latter was made after the expiration of the time limited for making it, in the conditions of the bond. To this plea the plaintiff demurs.

The question sought to be raised by the defendant in this case, is, whether an action of debt can be sustained on an arbitration bond, when the award is not made within the time specified in the conditions of the bond, though the parties may have extended that time by a new agreement. It seems to be settled, in such a case, [Freeman v. Adams, 9 J. R. 115,] that the action must be on the submission implied in the new agreement. The defendant here, however, seems to have mistaken the nature of the action, as set forth in. the plaintiff’s first count. It is not founded on the bond, but on the submission made by the new agreement, and on the award made in pursuance of it. The count sets forth all the circumstances,—the bond, the enlargement of the time, the agreement that the award shall be binding, and the award itself. It is strictly appropriate to the case, and the plea is clearly no answer to it. There must be judgment for the plaintiff on the demurrer.

Judgment for the plaintiff, with leave to the defendant, &c.

[Geo. W. Strong, Att'y for the plff. Horace Holden, Att'y for the deft.]