
    In the Matter of Samuel Horowitz et al., Copartners under the Firm Name of Sterling Cotton Mills, Respondents, against Benjamin Kaplan et al., Copartners under the Firm Name of Kay Ar Eff Cloak Company, Appellants.
    
      Arbitration — award set aside for misconduct of arbitrator in examining merchandise in dispute in absence of his associate arbitrator.
    
    
      Matter of Horowitz v. Kaplan, 221 App. Div. 567, reversed.'
    (Submitted April 10, 1928;
    decided May 1, 1928.)
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered November 4, 1927, which reversed an order of Special Term granting a motion to vacate, annul and set aside an award of arbitrators, denied said motion and directed reinstatement of the award. The controversy was between buyer and seller of merchandise, it being contended by the purchaser that the goods did not conform to sample. During the course of the arbitration that followed the arbitrators examined the merchandise but being unable to arrive at a unanimous decision, it was agreed between them that one arbitrator should return the next day and again examine the merchandise. This he did and reported his opinion to the other arbitrators. It was contended that this independent examination constituted misconduct for which the award should be set aside.
    
      Jonah J. Goldstein and Thomas G. Frost for appellants.
    
      Moses Jaffe for respondents.
   Order of the Appellate Division reversed and that of the Special Term affirmed, with costs in this court and in the Appellate Division, on the authority of Flannery v. Sahagian (134 N. Y. 85) and Hinkle v. Zimmerman (184 N. Y. 114).

Concur: Cardozo, Ch. J., Pound, Crane, Andrews, Lehman, Kellogg and O’Brien, JJ.  