119 N.Y. 475, New York Lumber and Wood-Working Co. v. Schneider

Citation:119 N.Y. 475
Party Name:THE NEW YORK LUMBER AND WOOD WORKING COMPANY, Appellant, v. MORRIS SCHNIEDER et al., Respondents.
Case Date:February 25, 1890
Court:New York Court of Appeals

Page 475

119 N.Y. 475

THE NEW YORK LUMBER AND WOOD WORKING COMPANY, Appellant,

v.

MORRIS SCHNIEDER et al., Respondents.

New York Court of Appeal

February 25, 1890

Argued January 31, 1890.

Page 476

COUNSEL

Everett P. Wheeler for appellant. The award is void, because the arbitrators did not pass upon all the questions submitted to them. (Wright v. Wright, 5 Cow. 199; Moore v. Cockroft, 4 Duer, 133; Jones v. Wellwood, 71 N.Y. 208; Merritt v. Thompson, 27 id. 230; 6 Wait's Pr. 529; Morse on Arbitration, 342; In re Rider, 3 Bing. 874.) It is also void because the award in terms only discharges the claim of the lumber company against the Schnieders under the contract. (Moore v. Cockroft, 4 Duer, 139; Stoddard v. Whiting, 46 N.Y. 627; Wright v. Wright, 5 Cow. 199.) The award was not delivered, and is, therefore, void. (Block v. Palgrave, 2 Cro. Eliz. 797; Parker v. Parker, Id. 448; Buck v. Wadsworth, 1 Hill, 321; Redman on Awards, 143; Pratt v. Hackett, 6 Johns. 14.) The commencement of this suit was a revocation of the arbitration. (Peters v. Craig, 6 Dana, 307; Harus v. Hiscock, 91 N.Y. 342.) The award should be set aside because the arbitrators were not competent, disinterested and impartial. (Livermore v. Bainbridge, 14 Abb. [ N. S.] 227; Redman on Awards, 90-93, 129, 130.) The award should be set aside because of unfairness and partiality on the part of the arbitrators. (Perkins v. Giles, 30 N.Y. 232; Redman on Awards, 199.) The award should be set aside because the award directed the lumber company to pay $1, 449, the entire fees and expenses of the arbitrators. (Akely v. Akely, 17 How. Pr. 24.)

Page 477

The award is no bar to this action. (Moore v. Cockroft, 4 Duer, 139; Chambovet v. Cagney, 3 J. & S. 474; Ryder v. Jenney, 2 Robt. 69.) Even if the award be sustained, the plaintiff should have had judgment in its favor for the foreclosure of the lien for the amount of the award with interest. (Arthur v. H. F. Ins. Co., 78 N.Y. 462; Code Civ. Pro. § 1207; Bate v. Graham, 11 N.Y. 237; Purdy v. Huntington, 42 id. 334, 346; Wilson v. Troup, 2 Cow. 195, 231; Bostwick v. Frankfield, 74 id. 207; James v. Morey, 2 Cow. 246, 284.)

William Man for respondents. The plaintiff claims that, the award not having been delivered until after suit brought, the arbitration was revoked by the commencement of an action. (Code Civ. Pro. § 2383; 2 R. S. 544, § 23.) The claims submitted are not shown by the written claims filed before the arbitrators. It is not competent to show what took place before the arbitrators unless for the purpose of showing corruption and misconduct. (Perkins v. Wing, 10 John. 146; Todd v. Barlow, 2 Johns. Ch. 551; Perkins v. Giles, 63 Barb. 346; Morse on Arbitration, 348.) If the award is valid, it is a bar in this or any action except one based upon the award to enforce the relief awarded by it to the plaintiff. This action is not of such nature, but, on the contrary, is brought subsequently as a suit for foreclosure of a mechanic's lien under the statute. (Wiberley v. Matthews, 91 N.Y. 648; Coleman v. Wade, 6 id. 44; Resseguie v. Brownson, 4 Barb. 545; Armstrong v. Masten, 11 Johns. 189; Wheeler v. Van Houten, 12 id. 310.) Payment of the award need not be pleaded. (Armstrong v. Masten, 11 Johns. 189; Brazill v. Isham, 12 N.Y. 9.) The arbitrators have the right to fix their fees and to refuse to deliver the award until they are paid. (Ott v. Schroeppel, 3 Barb. 56; Clement v. Comstock, 2 Mich. 359; 6 Wait's Act. & Def. 523; People v. Newell, 13 Barb. 86; Nichols v. R. C. Mut. Ins. Co., 22 Wend. 127; Strong v....

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