
    In the Matter of the Arbitration of Certain Differences between Joseph Miller, Petitioner, Respondent, and Samuel Weiner, Appellant.
    First Department,
    November 1, 1940.
    
      Louis L. Archer, for the appellant.
    
      Lazarus Joseph of counsel [Joseph & Demov, attorneys], for the respondent.
   Per Curiam.

While we believe that the conduct of the appellant in connection with the arbitration proceeding is reprehensible, still, since one of the arbitrators concededly passed judgment upon his own claim, the entire award and the order and judgment entered thereon will be vacated and set aside. We are inclined to the view that the court at Special Term was correct in stating, in substance, that the appellant refrained from making a timely objection to the arbitrator whose conduct he now condemns, apparently upon the theory that he expected a favorable result. However, it is almost axiomatic that an arbitrator is not permitted to consider and vote upon a matter in which he has a personal interest. Under the circumstances new arbitrators will be appointed.

The judgment and orders should be reversed, with costs, the motion to confirm the award denied and the motion to set aside the award granted.

Present — Martin, P. J., O’Malley, Townley, Glennon and Untermyer, JJ.

Judgment and orders unanimously reversed, with costs, and the motion to confirm the award denied, and the motion to set aside the award granted.  