
    Dater and McMurray vs. Wellington.
    A submission by D. and M. on one side, and W. and his partner on the other, will authorize an award in favor of the former, against W. alone.
    
    In an action on an award, a court of law cannot inquire whether the arbitrators erred on the merits, or acted corruptly—but only, whether the award is within the jurisdiction or power conferred by the submission.
    That the arbitrators refused to swear the witnesses, but allowed them to be heard without oath, is at most mere error, and no defence to an action on the award.
    On a motion to set aside an award, where provision is made for enforcing it by rule of court, other matters than those which are admissible as a defence to an action upon it, may be inquired into.
    Assumpsit, on an award of arbitrators, tried at the Rensselaer circuit, March 26, 1836, before Vanderpoel, C. Judge. The submission was by parol. On the trial, the plaintiff’s right to recover was contested on two grounds, viz. 1. Because the submission was between Wellington and his partner on @ne side, and the plaintiffs on the other, whereas the award was against Wellington alone. 2. Because the arbitrators refused to swear the witnesses on Wellington’s side, contrary to his request, and took their statements without oath. The testimony was quite contradictory, and the circuit .judge finally submitted the case to the jury with directions, that if they found the facts to be as contended for by the defendant on either point, he was entitled to their verdict. The jury-found for the defendant and the plaintiffs now move for a new trial on a case.
    
      S. G. Huntington, for plaintiffs.
    
      D. L. Seymour, for defendant.
   By the Court, Cowen, J.

The award was properly against Isaac Wellington, whether the submission were between the plaintiffs and him alone, or hipa and' his partner. (Fidler v. Cooper, 19 Wend. 285, 288, et seq. and the cases there cited by Bronson, J.) That is to say, the arbitrators had power to award against Wellington alone. Whether they may not have erred on the merits, we, as a court of law, have no power to inquire.

The oinission to swear the witnesses also, whether the parties had agreed that they should be sworn, or not; .and whether the parties waived their being sworn, or not, is at most mere matter of error or mistake, which we cannot correct. (Emmet v. Hoyt, 17 Wend. 410, 413, and cases there cited by Ch. J. Nelson.)

The questions submitted to the jury, neither of them related to the power nor jurisdiction of the arbitrators. It is of these, alone, that the court of law can inquire, in an action on the award. (Id.)

There was no pretence of corrupt misconduct in the arbitrators ; and, if otherwise, it would not be matter of inquiry in an action, though such matter may be urged on a motion to set aside the award, in a case where provision is made that it shall be enforced by rule of court. (Id. Wats, on Arb. 213. 1 Saund. 327, a, note (5).)

We think the learned judge erred; and there must be a new trial, the costs to abide the event.

Ordered accordingly. 
      
       See Browning v. Wheeler, (24 Wend. 258, 9.)
     