
    In the Matter of the Arbitration of Greening and Malcolm. George Malcolm, App’lt.
    
      Supreme Court, General Term, Second Department,
    
    
      Filed December 1, 1893.)
    
    1. Arbitration—Oath.
    The arbitrators, before hearing any testimony, must take the required oath, unless such oath is waived by the written consent of all the parties or their attorneys.
    2. Same—Witnesses.
    The same rule applies to the administration of the oath to the witnesses.
    3. Samr—Umpire.
    Where the method, by which the umpire is to be chosen, is not prescribed, it is necessary to follow the statute which requires the appointment to be in writing.
    4. Same.
    The umpire cannot be selected by “lot.”
    5. Same—Powers.
    An umpire selected by the arbitrators upon their non-agreement, cannot use the testimony taken before the arbitrators, but must give all the notices and hear all the witnesses anew.
    6. Same.
    Omission to give such re-hearing is fatal to the award.
    7. Same—Action.
    A judgment cannot be rendered upon an award, which is not acknowledged, proved or certified according to the requirements of the Code.
    8. Same—Vacation.
    An award may be set aside in case the rights of an interested party have been prejudiced by the misbehavior of the arbitrators.
    Appeal from an order vacating the award of an umpire.
    
      Edward D. Betteus, for app’lt; 'Thornton, Earle & Riendls, for Paul G. Grening; Richard T. Greenee, for Berry Wisner Soh-man, etc.
   Dykhan, J.

Paul C. Greening commenced an action in the supreme court against George Malcom for the recovery of $7,500 as commissions for the sale of the stock and bonds of "the Malcom Brewing Company.

After the commencement of the action, Greening assigned the claim to Berry, Wisner, Sohmon & Co., as collateral security for an indebtedness to that firm.

Thereafter on the 13th day of December, 1892, Malcom, Greening, and his assignees made an agreement in writing to submit all questions in dispute relating to the amount owing by Malcom to Greening for services performed by Greening for Malcom, to William Lamb and I. Cruder Lea, as arbitrators.

The submission contained a covenant that the award to be made by such arbitrators should be observed and performed, provided the same was made in writing under the hands of the arbitrators ready for delivery on or before the first day of February, 1893. •

The submission provided further that, in case the said arbitrators did not so make their award on or before such day, then the questions were to be and were thereby submitted to the decision of such third person as should be then or should theretofore have been appointed in writing by such arbitrators to act in such case as umpire, and it was then provided that the award so made and ready for delivery on or before the first day of March, 1893, should be valid and binding upon each of the parties in like manner as if it had been made by the arbitrators first named.

Then followed other provisions in the submission not material to the determination of the questions involved in this appeal.

The agreement was under seal and signed by Malcom, Greening and Berry, Wisner, Sohmon & Co., and its execution was duly acknowledged.

Previous to the commencement of the proceedings before the arbitrators, Greening and Malcom signed a written stipulation by which it was agreed that the oaths of the arbitrators, of the umpire and of the witness, and any informality, irregularity or defect in carrying out the agreement of arbitration and each of them were waived.

Greening and Malcom and the two arbitrators, Lamb and Lea, met, and Greening, Malcom and a Mr. Offerman were examined at some length, and, at the close of such examination, the arbitrators proceeded to the election of an umpire. The election was by lot, whatever that may mean, and Joel B. Erhardt was chosen to act as umpire.

It does not appear that the umpire either sat with the original arbitrators, or heard the testimony of the parties in any way, and one of the grounds stated in the notice to vacate the award is his failure to hear the case.

On the thirteenth day of February, 1893, the umpire made an award in writing in which he stated that he did not find the evidence sufficient to warrant that Greening was a promoter, but that he was entitled to payment for his services, and fixed the amount at fifteen hundred dollars.

Neither the arbitrators nor the umpire took any oath, and no notice of any of the proceedings before them was given to the assignees of the claim.

The assignees made a motion at the special term to vacate and set aside the award and all the proceedings had under the agreement tó arbitrate. The motion was granted as to the assignees, and Malcom has appealed from the order.

Arbitrations and the submission of cases to the courts upon stipulated facts are simple and inexpensive methods of quieting disputes growing out of business transactions.

In both proceedings, however, certain rules have been prescribed which must be followed and obeyed to secure a valid result.

In arbitrations, it is now a peremptory requirement that the arbitrators selected before hearing any testimony must be sworn faithfully and fairly to hear and examine the matters in controversy and to make a just award according to the best of their understanding, unless the oath is waived by the written consent of the parties to the submission of their attorneys. Code Civ. Pro., § 2369.

In this case, no oath was administered to the arbitrators or the umpire, and they were not sworn in any way. Neither was the oath waived by Berry, Wisner, Sobman & Co. nor their attorney.

The omission of the oath was erroneous and sufficient to justify the court in vacating the award.

It is important in all judicial proceedings to secure impartiality, and it is common knowledge that each of the parties to an arbitration select one of the arbitrators. Being so selected their oath is designed as a protection to the parties and ensures freedom from the operation of bias. Day v. Hammond, 57 N. Y., 484.

The same rule applies to the failure to administer an oath to the witnesses.

In reference to the choice of an umpire, a reference to the agreement shows that such selection was .authorized in a certain contingency, but the method by which it was to be chosen was not prescribed. In that case, it was necessary to follow the statute, which requires the appointment to be in writing. Code Civ. Pro., § 2367.

It is not easy to understand the mode of appointment pursued in this case. The record says the election of an umpire to serve on the committee of arbitration was proceeded with, that the election was by lot, and Joel B. Erhart was selected to act as umpire.

The term “lot” signifies chance, or that which happens without design or forethought, and at least we are authorized to conclude that this umpire was selected in some irregular and unjustifiable manner.

In the next place the failure of' the umpire to sit with arbitrators, or to cause a new hearing, is assigned for error, and seems to fall under condemnation.

It is now provided by statute that an umpire must sit with the original arbitrators upon the hearing, and if testimony has been taken before his appointment, the matter must be. reheard, unless it is waived. Code of Civ. Pro., § 2367.

In relation to the time when the umpire should be appointed we have no statutory provision. No general rule can be enunciated for all cases, because the agreement usually controls the question. If two arbitrators are appointed with power to choose a third, and the award of two is valid, then the colleague must be appointed before any step is taken in the reference, the reason being that the parties are in that case entitled to the benefit of the judgment of all three on the whole case.

But when two arbitrators who are unable to agree, exercise apower bestowed by the agreement to appoint a third, the authority to make an award is vested in them jointly, and even if an award made by two is valid, it must appear to have been the result of their joint deliberations.

In this case the two arbitrators had power to make-an award themselves, provided they did so on or before the 1st day of February, 1893, and if they did so they had no authority to appoint an umpire.

But if they failed to so make their award, then the questions were to be submitted to the decision of such third person as should be then or should theretofore have been appointed in writing by said arbitrators to act in such case as umpire, and the award so made and ready to be delivered on or before the 1st day of March, 1893, was be valid and binding.

It thus appears that the authority of the original arbitrators was limited to the first day of February, except for the purpose of appointing an umpire, and as they had previously selected an umpire their authority expired on that day. They then became functus officio, their official authority ceased and their occupation was gone.

Before that time the umpire had no authority, but after that he became invested with the same powers as the arbitrators. He was bound by the same rules, and required to perform the duties. It became necessary for him to pursue the same course in the conduct of the trial, give the same notices to all the parties to the submission and hear all the testimony produced, even though the same witnesses had been examined before the arbitratoa-s. He could not use the testimony taken before the arbitrators. Russell on Arbitrations, p. 228. Elmendorf v. Harris, 23 Wend., 628; Day v. Hammond, 57 N. Y., 485; Salkeld v. Slater, 12 Ad. & Ell., 767.

The underlying principle for this rule is that parties are entitled to a hearing before all judicial tribunals and no one should be condemned unheard..

The reason of the rule applies with augmented force in this case, as it is a case of pure umpirage where the decision of the case rested solely with the umpire.

The failure to give a re-hearing was as mischievous and unjust as it would have beén to proceed without a hearing in the first instance and the omission is fatal to the award. West Jersey R. R. Co. v. Gibson, 6 C. E. Green, 205; Bulson v. Lohnes, 29 N. Y., 291.

If it be said that this conclusion involves the necessity of two trials the answer is that such result is the consequence of the agreement of the parties. Their submission can be carried into practical effect in no other way consistent with the rules of law applicable to arbitrations.

In relation to the claim of waiver by the stipulation of Morton and Greening and the general appearance in the case of the latter, it is sufficient to say that he had no authority to bind his assignees and they were parties to tjhe submission.

It was provided in the agreement that a judgment should be rendered upon the award made in pursuance of the submission, but that cannot be done because the award was not acknowledged, proved or certified according to the requirements of the Code. Code Civil Procedure, § 2372.

Our examination shows that the proceedings are overlaid and intertwisted with error.

They are violative of the fundamental principles of law which control judicial tribunals in the administration of justice.

These independent tribunals set up by the parties to a controversy are sufficiently irresponsible and beyond the reach of the courts even when restrained by the rules of law provided for their direction, and when their proceedings are not conducted in subordination to such rules, the only remedy within reach of the parties is to set aside the result of such illegal action as there is usually no remedy by appeal.

The legislature has provided that the court must set aside the-award of arbitrators in several cases, and the specifications are very comprehensive, including any misconduct by which the rights of any partv have been prejudiced. Code Civil Procedure, § 2374, sub. 3“

In this case the rights of Berry, Wisner, Sohman & Co. have-been prejudiced by the misbehavior of the arbitrators in the sense of mismanagement, and it thus became the imperative duty of the court to vacate the award.

The order should, therefore, be affirmed with ten dollars costs- and disbursements.  