12 N.Y. 9, Brazill v. Isham

Citation:12 N.Y. 9
Party Name:BRAZILL v. ISHAM and EARLE.
Case Date:December 01, 1854
Court:New York Court of Appeals

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12 N.Y. 9

BRAZILL

v.

ISHAM and EARLE.

New York Court of Appeal

December 1, 1854

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COUNSEL

W. C. Noyes, for the appellants.

I. The question for this court to decide is whether, in an

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action where the plaintiff proves, as part of his own case, a previous arbitration and award upon the same demand, which award is not set up in the answer, the defendant is entitled to a nonsuit. The plaintiff's demand in this action having been submitted to arbitration, and an award duly made thereon, he could not afterwards maintain an action upon the same demand. The award, if valid, was a bar, and the plaintiff should have brought his action upon that. (Kyd on Awards, chap. 8; Caldwell on Arbitrations, 211-212; Shephard v. Watrous, 3 Cai., 166; Munro v. Allaire, 2 Cai., 320; Wheeler v. Van Houten, 12 J. R., 310; Howard v. Cooper, 1 Hill, 44; Delong v. Stanton, 9 J. R., 37; Robertson v. McNicl, 12 Wend., 578.)

II. The court below, in affirming the judgment, admit that the award, if valid, was final. The award is valid. The plaintiff could maintain an action upon it. 1. It is mutual. It awards a sum of money to the plaintiff, and therefore carries in itself a mutuality, and it must be held to be in satisfaction of the matter submitted. ( Ward v. Ellis, 3 Cai., 253; Cald. on Arb., 113; 2 Selden, 44.) 2. It is certain. No reasonable doubt can arise upon the face of it as to the arbitrator's meaning, or as to the nature and extent of the duties imposed by it on the parties. (Cald. on Arb., 107, 110.) 3. It is final. It is an absolute, conclusive adjudication of the matters in dispute. ( Solomons v. McKinstry, 13 J. R., 27.) 4. It is consonant to the submission. The submission was of a controversy existing in relation to a certain account, and the arbitrator, having the whole controversy before him, passed upon and decided the whole controversy. (Cald. on Arb., 98.) The submission must be so construed as to make the intention of the parties prevail. (Kyd on Awards, 14.) If the persons comprehended in the award were in contemplation of the submission, though they were not directly parties to it, yet the award is good. (Kyd on Awards, 106.) If it might reasonably be presumed that nothing was in reality awarded beyond the submission, it has, in general, been

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supported. (Kyd, 113.)Courts never raise a presumption for the sake of overturning an award; but, on the contrary, make every reasonable intendment in its support. (Cald on Arb., 123.) If it be possible, in consonance with reason, to expound an award favorably, the court will do so. (Cald. on Arb., 131.) The order in favor of the plaintiff, may be properly referred to as tending to show the nature of the controversy. ( Doty v. Brown, 4 Comst., 71, and cases there cited.)

III. But even if that part of the award prescribing the manner of payment be void, it is void only pro tanto. That part of the award is not so connected with the rest as to affect the justice of the case. It does not affect the merits of the submission. Strike it out, and the remainder would constitute a perfect award, upon which the plaintiff could maintain an action. ( Martin v. Williams, 13 J. R., 264; McBryde v. Hagan, 1 Wend., 326; Jackson v. Ambler, 14 J. R., 96; Doke v. James, 4 Comst., 568.)

IV. The judgment of the court below should be set aside, and a nonsuit ordered--or at least should be modified, by reducing it to the amount awarded by the arbitrator.

C. P. Kirkland, for respondent.

I. The decision of the referee was in no degree founded on the award; the testimony of the plaintiff, irrespective of that, was the foundation of the report.

II. The award was not set up by the defendants, nor in any manner relied on by them as a defence. (Code, § § 149, 150, 250.)

III. The award was void on its face; it awarded the money to be paid by a stranger. ( Solomons v. McKinstry, 13 Johns., 27; Martin v. Williams, 13Johns., 264; Stevens v. Gray, 2 Harring., 347; Watson on Arb., 184, note g.; Watson on Arb., 186, note p.; 59 Law Lib., 116; Rolle. Arb., f. 1, 2, 3; 2Saund., 337; 2 Lev., 6, 235; 1 Leon, 140, 304, 316, 3d Leon,

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62; Moore, 359; 10 Co. Rep., 131; Cro. Eliz., 4; Brown v. Hankerson, 3 Cow., 70; Russell on Arb., 427,...

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