
    Robert Herbst, App’lt, v. Lionel Hagenaers, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 31, 1891.)
    
    1. Arbitration—Award—Requisites.
    An award made by arbitrators under the Code of Civil Procedure should be final and definite.
    
      2. -Same. .. . • • ■ ■.
    Where, the question of the rights of partners in a copartnership was-submitted ,to arbitrators and they awarded one partner a definite sum and also the sum which might bo due him from the firm on April 18, 1891, Held, that the award was void as indefinite and incomplete.
    Appeal from order denying motion, to set aside award and from judgment entered on decision of arbitrators.
    
      W. JV Cohen, fqr app’lt; L. W. Bussell, for resp’t.
   Van Brunt, P. J.

Prior to April, 1891, the parties to this,

motion had been-copartners, and on thelSth of April said partnership was by mutual consent dissolved,' and the parties agreed to stibmit to arbitration the question as tó what their respective interests in said copartnership were, and also' what compensation, if any, either party was entitled to in consequence of the dissolution of the partnership, and Mr. C. C. Abell and Mri C. A. Johnson were appointed arbitrators; and by the agreement it was provided that the judgment to be entered upon their award should, be final in the premises, and that it should be filed in the supreme court as for á judgment on the merits of the question in controvérsy. '

The arbitrators met and heard the proofs, and on the 29th of April, 1891, made an award' by which it was provided that the appellant Herbst was to engage to pay áll the liabilities of the firm existing' on the" 18th of April, 1891, and to release the respondent Hagenaers from all responsibility to said firm on and from that date, and that thé appellant was to collect the firm’s outstanding accounts. The award further provided that the amount which might be due the respondent from the firm on the l'8th of April, 1891, irrespective of the amount of the award thereafter given, was to-be paid to him in excess of the amount of-the award, "which amount and the awmrd was to be paid in cash within ten days. The appellant! was to continue the business in the firm náme and the firm’s books arid papers were to remain his property as provided by the copartnership agreement, and the sum of $6,336 was awarded to the "respondent, which did not include the amount due to the respondent on the books of the firm on the"18th of April, 1891.

' On the 6th of May,'. 1891, the arbitrators reconvened and made a supplemental award. Motions, were thereupon made to vacate the awards upon various grounds and also a motion to confirm the same. The motion to vacate was denied, and the motion to confirm granted and judgment was entered upon the original award irrespective of the supplemental award, and from the order denying the motion to vacate said judgment this appeal is taken.

The grounds upon which it is sought to vacate were, first, that the arbitrators illegally "refused to hear proper and legal testimony; that they are chargeable with gross partiality and misconduct; that they exceeded their powers; that the award is not certain, final and conclusive; that the pretended supplemental award is unauthorized and void ; and even were the supplemental award valid, the entire award is so grossly excessive as to be fraudulent in law, and another ground which it is not necessary to state here.

No action having been taken upon the supplemental award and do judgment entered thereon it is not necessary to discuss the question as to the right of the arbitrators to make such award.

The claim that the arbitrators illegally refused to hear evidence is not sustained by the record. It is true’ that the appellant by his affidavit claims that the arbitrators refused to hear evidence whicli he offered. But it is to be observed that his affidavit is somewhat indefinite in this particular, and it is denied both by •one'of the arbitrators and by the respondent that he ever offered to produce such evidence or testimony; and it is denied by the arbitrator that the letter of the appellant offering to produce testimony was ever received by him. There is therefore no ground made out upon the papers for vacating the award for this reason.

The charge of gross partiality and misconduct is not made out It is claimed upon the part of the appellant that one of the arbitrators was under the domination of the other, but there is no evidence of that kind. Neither is there any evidence that the arbitrators exceeded their powers. Neither is the claim that they refused to allow the appellant’s stenographer to take a record of the proceedings well taken.. It would certainly be rather remarkable if the record of a proceeding semi-judicial in its nature was to be kept by the employee of one of the parties.-

But that the award is not certain, final and conclusive seems to be established upon its face.

It is provided by § 2374 of the Code that in certain cases the court specified in the submission must make an order vacating the award; and amongst others, where the arbitrators exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted has not been made. Now the question submitted to the arbitrators in this case was the question what the respective interests of the copartners in said copartnership were, and also what compensation, if any, either party was entitled to in consequence of the dissolution of the partnership, and it was provided that a judgment might be entered upon this award. Therefore, there was nothing to be left undetermined or indefinite .so that it might not be' executed as a judgment of the court

We find that in the‘award a definite sum is "awarded to the respondent, and an indefinite sum, namely, the sum which might be due to the respondent on the 18th of April, 1891, from the firm of which he was a member, irrespective of the abiount which had been awarded. This is clearly so indefinite that no-judgment whatever could be entered upon the same. The submission was that they should determine the respective interests of the partners in the firm, and what compensation, if any, either party was entitled to in consequence of the dissolution. The arbitration was intended to wind up the affairs of the concern and to settle the rights of the parties, and determine what amount of - money the respondent should receive from the appellant upon this dissolution.

The award left the whole question open, by providing that what was due from the firm to the' respondent on the 18th of April, 1891, should be paid to him without fixing any amount. This was attempted to be done by the supplemental award. But, as already suggested, no judgment having been entered upon the supplemental award, it is not necessary to consider it here, although it would seem that by the making of the first award the-office of the arbitrators ceased.

The award not having been final and definite upon the subject, matter submitted, the court was bound to set it aside as an imperfect and incomplete adjudication.

We think, therefore, for these reasons, that the motion to vacate the award should have been granted.

The order should be reversed, with ten dollars costs and disbursements, and the motion to vacate granted.

Barrett and Andrews, JJ., concur.  