74 N.Y. 38, Wood v. Tunnicliff

Citation:74 N.Y. 38
Party Name:RODMAN WOOD, Respondent, v. WELLINGTON TUNNICLIFF et al., Appellants.
Case Date:May 28, 1878
Court:New York Court of Appeals

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74 N.Y. 38

RODMAN WOOD, Respondent,

v.

WELLINGTON TUNNICLIFF et al., Appellants.

New York Court of Appeal

May 28, 1878

Argued Apr. 17, 1878.

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[Copyrighted Material Omitted]

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COUNSEL

Samuel Hand, for appellants. The executors were not bound by anything that appeared in the arbitration papers. (Chouteau v. Suydam, 21 N.Y. 179; Powell v. Graham, 7 Taunt., 581; Douse v. Coxe, 3 Bing., 20; 47 N.Y. 367; Love v. Honeybourne, 4 D. & R., 814; Schoonmaker v. Roosa, 17 J. R., 301; Pearson v. Henry, 5 T. R., 6; Bank v. Tapping, 9 Wend., 275; Ten Eyck v. Vanderpool, 8 J. R., 120.) The executors had no power or authority to submit claims against the estate to arbitration. (Tucker v. Tucker, 4 Keyes, 136, 150; 2 R. S., 89, § § 36-39; Cook v. Kelly, 12 Abb., 36; Hardy v. Ames, 47 Barb., 413; Whitney v. Defosse, 1 Den., 159; Story on Agency [7th ed.], § 13; Hawley v. James, 5 Paige, 487; Newton v. Bronson, 3 Kern., 587.) Defendants were released from liability by the failure to make the award at the time agreed upon. (Buck v. Wadsworth, 1 Hill, 321; Damley v. L. C. and D. R. Co., L. R., 2 H. of L., 43.) The executors could not waive the provision as to the time of making the award for defendants without their consent. (Coleman v. Wade, 2 Seld., 44; Billington v. Wagoner, 33 N.Y. 31; Dorlon v. Christie, 30 Barb., 610.) The relation of plaintiff to the arbitrators vitiated the award. (People v. Wheeler, 21 N.Y. 85.)

C. D. Adams, for respondent. A submission by executors of a claim against their testator to arbitration, with a promise to pay the award, is their personal promise, and the award can be enforced against them personally. (3 R. S. [ 5th ed.], 201, § 1; 1 D. & E., 691; Barry v. Rush, 5 Id., 6; 17 J. R., 301; 13 Wend., 557.) The award is valid, and may be enforced as a good common law award. (21 N.Y. 148.) The liability of defendants is co-extensive with that of the executors. (47 N.Y. 653; 37 Id., 526.) The arbitrators were not disqualified from acting by reason of their

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relationship to plaintiff. (21 N.Y. 82-86; 1 Den., 186, 187; 2 Barb. Ch., 331.) It was too late to claim for the first time in this court that the award was rendered void by the delay in making it. (37 N.Y. 526; 58 Id., 541-546; 52 Id., 399-404; 51 Id., 541-546.)

ANDREWS, J.

If the arbitration agreement between the plaintiff and the executors of Van Horne, was mutually binding and obligatory upon the parties, and the award made was within the submission, no doubt can be entertained of the correctness of the judgment against the defendants. Their undertaking was to pay any award made against the executors in case of their failure to pay it. The arbitrators found that the executors, as such, were indebted to the plaintiff in the sum of $4,502.42, and awarded payment thereof by them.

The indebtedness, thus ascertained, grew out of transactions between the plaintiff and the testator in his lifetime, and was for labor performed by the plaintiff for the testator, and personal property sold. It was conceded on the trial that before the action was commenced, a copy of the award was served on the executors, and that they refused to pay it. These facts brought the case within the very terms of the defendants' engagement. The arbitrators had made an award against the executors--they had refused to pay it, and the defendants' covenanted that, upon the happening of these events, they would "pay or cause to be paid the amount thereof." The language of the defendants' covenant does not admit of the construction that their liability was contingent upon the existence of assets, or that they were to pay to the extent only of the assets in their hands applicable to its payment. No such contingency is expressed or implied in the guaranty. The...

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