THE HARTBRIDGE., 326.
| Decision Date | 11 April 1932 |
| Docket Number | No. 326.,326. |
| Citation | 57 F.2d 672 |
| Parties | THE HARTBRIDGE. In re NORTH OF ENGLAND S. S. CO., Limited. |
| Court | U.S. Court of Appeals — Second Circuit |
Irving L. Evans, of New York City (Horace M. Gray, of New York City, of counsel), for appellant.
Charles R. Hickox and Clement C. Rinehart, both of New York City, for appellee.
Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
The parties to this appeal entered into an arbitration agreement which provided that a judgment on the award might be entered in the court below, as authorized by the United States Arbitration Act § 9 (9 USCA § 9). On November 6, 1931, by a majority decision, the arbitrators made an award in favor of the appellee, North of England Steamship Company, Limited. Upon due notice a motion to confirm the award came on for hearing on December 1st. In opposition the appellant filed affidavits challenging the court's jurisdiction to confirm the award before February 6, 1932, because section 12 of the act (9 USCA § 12) allows three months for service of notice of a motion to vacate an award. The affidavits also set up that the appellant "intends to move to vacate" within the time allowed by the statute, and could not make its motion forthwith because of the loss of certain exhibits used by the arbitrators. The District Court granted the motion, and eight days after entry of its order this appeal was allowed.
The motion to confirm the award was not premature. Section 9 provides that "at any time within one year after the award is made" any party to the arbitration may apply to the court for an order of confirmation. Section 12 requires that notice of a motion to vacate an award must be served within three months after the award is filed or delivered, but there is nothing in such requirement to suggest that the winning party must refrain during that period from exercising the privilege conferred by section 9 to move "at any time" within the year. We regard the jurisdiction of the court to enter the order of confirmation as beyond question. The federal act in respect to the sections now under consideration is almost verbatim like the corresponding provisions of the New York statute, so that the state practice may be regarded as highly persuasive, even if not controlling. In Matter of Conway, 179 App. Div. 108, 166 N. Y. S. 182, it appears that the award was confirmed and judgment entered thereon within less than two months after the award was made. That the opposing party made no contention that the confirmation was premature would seem to indicate that the state practice accords with our own construction of the federal act.
We do not, however, agree with the district judge's statement that confirmation must be granted "as a matter of course, unless the award has been vacated or at least unless a motion to vacate or modify has been noticed." Upon a motion to confirm the party opposing confirmation may apparently object upon any ground which constitutes a sufficient cause under the statute to vacate, modify, or correct, although no such formal motion has been made. See Matter of Picker, 130 App. Div. 88, 114 N. Y. S. 289; Matter of Conway, supra; Matter of Wilkins, 169 N. Y. 494, 62 N. E. 575; Sturges, Commercial Arbitrations and Awards, 874. But the appellant's opposing affidavits presented no facts in support of the charges which it intended to urge as grounds for vacating the award as soon as its motion papers could be prepared. Hence the order of confirmation was correct, unless the court abused its discretion in not postponing action on the motion to confirm until the appellant could find the misplaced exhibits which it alleged were necessary to the preparation of its objections to the award. If confirmation did not preclude the appellant from thereafter moving to vacate the...
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