
    In the Matter of the Arbitration between Harry N. Gitt, Appellant, and Julius Marqusee, Respondent.
    First Department,
    November 4, 1910.
    Arbitration—revocation before final submission of controversy.
    Evidence respecting an arbitration field pursuant to the provisions of the Code . of Civil Procedure examined, and held, that the arbitration was'not closed and the rights of the parties finally submitted at the time when the award was made, but that on the contrary the appellant from the j udgment entered thereon -was at the time of the award entitled to produce further proof in his favor so that his notice of revocation served before the meeting at which the award was signed was effective.
    Appeal by Harry H. Gitt from an order of the Supreme Court, made at che New York Special Term and entered in the office of the clerk of the county of New York on the 29 th day of March, 1910, confirming an award of arbitrators, and also from a judgment of the Supreme Court in favor of Julius.Marqusee,-entered in said clerk’s office on the 31st day of March, 1910, pursuant to said order of confirmation.
    
      Martin L. Stover, for the appellant.
    
      Milton J. Bach, for the respondent.
   Dowling, J.:

' On January 7,1910, an agreement of arbitration was entered into between Harry H. Gitt and Julius Marqusee, whereby they submitted all the controversies .between them for determination to Aaron J. Bach and Frank'F. Peard, with power to these two arbitrators to select a third, judgment to be entered upon -the award of the arbitrators pursuant to the provisions of the Code of Civil Procedure.

The 5th clause of the said agreement provided as follows: “ Hotice of motion to confirm such award and for the entry of such judgment, and all other notices that may be-necessary or proper in and about said matters, shall be served upon the respective. parties by leaving and serving the same at their respective offices on Water street, Borough of Manhattan, Mew York City.”

The two arbitrators named selected John H. Buys as the third, and on January eleventh hearings commenced before them, written notice thereof having been given to the parties pursuant to the' terms of the agreement. The second hearing was held on January twelfth, and the record of their proceedings shows that both parties were notified of the hearing by the delivery at their respective offices on Water street of the written' notices thereof. The third meeting took place on January twenty-seventh, a. similar statement appearing in the record.

The controversy between the parties herein arises because of their respective claims as to what occurred at this meeting, for the validity of the order confirming the award of the arbitrators depends upon the question of whether or not, at the termination of the meeting on January twenty-seventh, the allegations and proofs of the parties had been closed and the matter had been finally submitted to the arbitrators for their decision.

If such was then the status of the proceedings, the attempted revocation of the arbitration agreement on February ninth was ineffectual; if, on the other hand, such-was not the status, the revocation was effectual.

As to what actually occurred at the close of the hearing on January twenty-seventh there is a wide divergence of opinion and a clear issue of fact. The official record kept by the arbitrators contains only the following' entry:

“ Mr. Peard: Mr. Gitt, have you any knowledge or evidence to prove that the weights of these tobaccos were increased? Mr. Gitt: I have; I cán produce the proofs. I understand that the only thing the committee ón arbitration is arbitrating on is the questions at issue presented to you in our claims in writing. Mr. Bach: There is no limit at all. Mr. Peard: Mr. Gitt, are you satisfied to have us pass on this matter without the testimony of Mr. Loeb ? Mr. Gitt: Well, I will say that if there is any question in the minds of the committee, if there is any doubt as to this contract, I will produce him. I would like his testimony if the committee deem it necessary.”

That this does not accurately and completely set forth what really transpired no one denies. The stenographer, who kept the minutes of the doings of the arbitrators herself, swears tiiat all through the proceedings she was in the habit of taking such testimony only as she was told to take; that she did not take everything that was said, nor did she take all of the discussions of the parties and the arbitrators, and her notes show merely the testimony of the witnesses relevant to the matter in dispute. She further swears that her understanding was that after the hearing of January twenty-seventh there was to be no further testimony taken; she remembers that the arbitrators asked Mr. Gitt if he had any more witnesses to bring before them, and he said that he had not, unless the arbitrators deemed it necessary, and then he might have Mr. Loeb testify on such matters as had already been submitted; in reply thereto the arbitrators said that they had a distinct understanding of Mr. Gitt’s contention, and that they did not think it necessary that Mr. Loeb should appear. She admits that this conversation did not appear in full on her notes, because ail the testimony had been submitted, and she is giving merely her. recollection of what took place after all the testimony was in and after all the witnesses had been examined.

John EL. Buys, one of the arbitrators, swears that at the close of the hearing on January twenty-seventh all of' the arbitrators expressly inquired of each of the parties to the arbitration whether they had produced all of the witnesses and testimony that they desired, whereupon each of the parties stated that they had no further - testimony to .offer, and the arbitrators then declared the testimony and "hearings closed. He further swears that at said hearing the arbitrators requested H. 3ST. Gitt to produce certain receipts for payments which he alleged he had made on account of Julius Marqusee, arid Gitt agreed to produce the same on February 9,-1910, did not do so, arid instead served a notice of revocation of the arbitration agreement, which service was made an hour before the time, set for the hearing on that day. He further swears that the award was determined in favor of Marqusee, and the money due him fixed by the arbitrators before the revocation and withdrawal was received; that the hearings for the taking of testimony were closed on January twenty-seventh, and all matters finally submitted to the arbitrators at that time; that no further testimony was to be offered or furnished, except that Gitt was to produce the receipts hereinbefore referred to.-

One Mendelssohn, a witness produced before the arbitrators, who was present as he claims when the hearings were closed, swears that Aaron J. Bach, one of the arbitrators, asked Gitt and Marqusee the following question : Have you gentlemen given all of the evidence which yon intend to submit and have you called all of your witnesses ? ” In reply to which both Gitt and Marqusee answered: “I have nothing further to offer and my case is closed and in your hands.” Aaron J. Bach swears that at the close of the meeting on January twenty-seventh he inquired of both Marqusee and Gitt whether they had produced all the witnesses and given all the testimony they desired in this matter, to which Marqusee replied in the affirmative; whereupon Gitt said : “ If there is any question in the minds of the committee, if there is any doubt as to this contract, I will produce Mr. Loeb. I would like his testimony, if the committee deem it necessary.” Whereupon all the arbitrators answered that they did not need the corroborative testimony of Mr. Loeb, and then Gitt said: u My testimony is all in and the case is in your hands, gentlemen.” He then swears that after the hearing was over there was a general discussion, in the course of which the arbitrators told Gitt that they would very likely want to see certain receipts given to him by Marqusee for certain items to which he had testified as moneys paid out by him for Marqusee. These he had promised to produce, but when asked for them Gitt said that he had forgotten them and would produce them at a later date. He admits that notice was given to Gitt of a hearing to he had on February ninth at two o’clock, and says that meeting was for the purpose of informing the parties that the arbitrators were prepared to hand down a decision and was not for the purpose of hearing testimony or examining witnesses; but that arrangement had been made for the attorney who had advised the arbitrators to be present on that occasion in order to draw the award in accordance with the decision. He declared that all the hearings were closed on January twenty-seventh and the matters then finally submitted to tire arbitrators for their determination. Herman Cohen confirms the statement as to Gitt’s saying that the case was all in and that he had no more evidence to submit and no more witnesses to bring.

The third arbitrator, Frank F. Peard, confirms the statement that at the close of the hearing on January twenty-seventh Gitt offered to produce Loeb as a witness if there was any doubt in the minds of the committee, whereupon the arbitrators told him that they understood his contention and did not require the corroborative testimony of Mr. Loeb, whose presence Gitt said could not be procured in Flew York. He further says that after the matter had been submitted to the arbitrators by both parties, they requested Gitt to produce for them and for their convenience certain receipts that seemed to indicate moneys due him received by Marqusee; that Buys was delegated by Peard to inspect these receipts on his behalf, they both feeling that this money was due Gitt; that Peard’s understanding was that Gitt would appear on February ninth “to explain his understanding of these accounts ” to the arbitrators. Peard further states that the hearing for the purpose of taking testimony was closed on January twenty-seventh, and all the matters finally submitted to the arbitrators at that time and that no further testimony was to be offered or furnished “ except that the said Harry FT. Gitt was to produce the said receipts and furnish the information as hereinbefore set forth.”

Gitt swears that he never consented to the final submission of the matters in dispute to the arbitrators for their decision and that he at no time “ considered or understood that the allegations and proofs of the parties hereto had been closed; ” that he had not on January twenty-seventh submitted all of the proofs that he desired, but that on the contrary he then said to the arbitrators that he had more proof to submit; he contends that there were claims aggregating $6,713.74 which had been marked “ O. K.” by Marqusee and were admitted by Marqusee to be valid claims against him in favor of Gitt, whereof no evidence had as yet been received by the arbitrators; as a matter of fact the arbitrators only allowed Gitt an offset of about $2,000. Gitt claims that he expected and intended to give evidence of such claims if the arbitration had proceeded, and that he desired also to give further evidence upon other items in dispute. He further claims that the adjournment of January twenty-seventh was until February fourth, when it was further adjourned until February ninth because of the absence of some of the parties from the city. He produced the notice given to him pursuant to the arbitration agreement of the holding- of the meeting on February ninth, which is as follows:

“ Elias Bach & Son,

“166 Water Street,

“Hew York, February 1th, 1910.

“Mr. Harry H. Gitt,

“147 Water Street,

“Hew York Oity:

“Dear Sir. — Re-arbitration Gitt-Marqusee.

“ There will be a meeting of the arbitrators Wednesday afternoon, February 9th, 1910, at two o’clock in the afternoon, at this office.

“Very truly yours,

“(Signed) AAROH J. BACH, “JOHH H. DHYS,

“ By A. J. Bach, “FRA'HK F. BEARD,

“ By A. J. Bach.”

■It seems to be apparent from all these statements, contradictory as they are, that the only conclusion which can fairly be drawn is that neither the parties nor the arbitrators considered the testimony closed nor the case finally submitted on January twenty-seventh. Even if Gitt did not then intend to produce Loch as a witness, it is clear that he did intend (as he puh icly announced) to produce the credit items approved by Marquseq, which would have tended to support his right to the credit of some $6,700, which, concededly, was not allowed him by the arbitrators and that the arbitrators understood that they were to consider such items before they reached a conclusion.

It is evident that the arbitrators could not close the testimony when there still remained to be considered evidence in relation to so substantial a sum as this ; nor does the notice given of the meeting of the arbitrators on February ninth in any way indicate that it was solely for the purpose of announcing their decision, -Well was •then to be put in legal form by their attorney.

The notice of revocation given by Gitt .was proper in form, and having been served before the time fixed for the meeting procedure was effective if the allegations and proofs of the parties had not been closed and if the matter had not been finally submitted to the arbitrators for their decision.

The conclusion is irresistible that neither the parties nor the arbitrators deemed the allegations and proofs closed or the matter finally submitted for their decision on January twenty-seventh or at any time before the notice of revocation was served.

. The judgment appealed from must, therefore, be reversed, with costs to the appellant, and the motion for an order'confirming the award of the arbitrator's denied, with ten dollars costs.

■ Ingraham, P. J., Laugiilin, Scott and Miller, JJ., concurred.

Order reversed, with costs, and motion to confirm award of arbitrators denied, with ten dollars costs. Settle order on notice.  