
    Thomas Morton, plaintiff and appellant, vs. Roderick W. Cameron, defendant and respondent.
    1. A party to an arbitration may resort to the original cause of action embraced therein, where the award of the arbitrator is void.
    2. A lessor may maintain an action on a covenant in a lease of a furnished house executed by the lessee, to pay all damages accruing to the house or furniture during the term, notwithstanding an agreement contained therein, that such damages should be determined by a named person, where his appraisal of such-damages may be void for want of notice of time or place of such appraisement.
    (Before Robertson Ch. J. and Moncrief and Monell, JJ.)
    Heard January 11, 1865;
    decided March 4, 1865.
    The action was to recover damages for injury to a house and furniture. In July, 1858, the plaintiff leased to the defendant a furnished house for the term of nine and a half months. By the lease the defendant agreed to pay all damage or abuse to house and furniture, &c. which might occur to or on the premises and furniture while in his possession, whether caused by himself, family, servants, &c. from neglect or otherwise, reasonable use and wear thereof, and damages by the elements excepted. It was mutually agreed that Thomas D. Hughes, Jr. should determine, at the expiration of the lease, the amount of damage, &c. to house, furniture, carpets, &c. and that the defendant would pay to the plaintiff the amount of damages (if any) assessed by the said Thomas D. Hughes, Jr. The lease was executed by both parties under their seals, and had annexed to it a schedule of furniture, &c.
    After the expiration of the term, Hughes made an assessment of damages to the house, furniture, &c. amounting to $750.
    The complaint alleged two causes of action: First. Upon the covenant in the lease, to pay for damages or abuse which might occur to the house or furniture, and Second, upon the assessment of Hughes. To the first cause of action the defendant answered denying any damage done to the house or ftirniture ; to the second cause he denied any knowledge, &c. of the assessment.
    Evidence was given on both sides as to the alleged damage to the house and furniture. The plaintiff proved that Hughes notified the defendant of the time and place when he would assess the damages. This was contradicted by the defendant. Hughes assessed the damages at $750. His assessment was given in evidence. The justice charged the jury, in substance, that if they should find that notice of the time and place when Hughes would make the appraisal of damages was not given to the defendant, he. would be entitled to their verdict. He further charged that if they should find that notice was given and an appraisal was made, and that in estimating the damages Hughes included any thing not contemplated by the agreement, their verdict must be for the defendant. That by the terms of the agreement the defendant was only liable .for such damage as was. done to the house and' furniture, and if in estimating the damage, Hughes included more than that, his award was void, and the plaintiff could not recover. The plaintiff excepted to these several propositions. The jury rendered a verdict for the defendant. A motion was made at special term on a case, for a new trial, which was denied, and judgment entered on the verdict.
    The plaintiff appealed from the judgment and order.
    
      S. P. Nash, for the appellant.
    
      J. Slosson, for the respondent.
   Monell, J.

The theory of the charge was, that unless the jury should find that notice of the time and place of the appraisement was given to the defendant, the plaintiff could not recover. In other words, that the only cause of action upon which the plaintiff could in any event recover, was the award made by Hughes, the chosen appraiser.

If notice of the time and place of the appraisement was necessary, there was sufficient conflict of evidence to render it proper to submit that question to the jury. Under the view of the learned justice, notice was necessary, and if it was not given, the appraisement would be utterly void, and of no effect. The jury, by their verdict, have found that such notice was not given. The question, then, is, whether the award being void, the plaintiff can resort to the original cause of action, which was intended to be liquidated and disposed of by the appraisement.

The lease contained an independent covenant on the part of the defendant to pay all damage to the house or furniture. This was followed by a further agreement, that Hughes should determine the amount of the damage ; which amount, when assessed, the defendant agreed to pay to the plaintiff.

It has repeatedly been decided that provisions in agreements for the appraisal of damages, or the ascertainment of value, are revocable by either party, and except where, as in this case, there is an express promise to pay, are not conclusive upon either party. (Hays v. Hays, 23 Wend. 363. Brady v. Mayor of Brooklyn, 1 Barb. 584.) And it has also been repeatedly decided that where the award is void, resort may be had to the original cause of action. (Mayor of New York v. Butler, 1 Barb. 325. Haggart v. Morgan, 5 N. Y. Rep. 422, and cases there cited. Hart v. Lauman, 29 Barb. 410.)

It is clear, I think, that irrespective of the award, and regarding it, as we must, as utterly void, the action is maintainable upon the covenant to pay damages. It was, therefore, error to instruct the jury to find for the defendant, if they found the award to be void, by reason of no notice having been given. By such instruction the other cause of action of the plaintiff was excluded.

The only difficulty that has presented itself to me in the case is, that it does not appear that the plaintiff claimed at the trial to recover irrespective of the award, or that the attention of the learned justice was called to any other cause of action than the award. Some evidence was given of the amount of damage to the house and furniture, and it would have been competent for the jury to have given their verdict for the plaintiff.

If this case came to us upon exceptions only, I should be inclined to refuse a new trial. The objection that the charge excluded a recovery upon the other cause of action ought not to be taken now, for the first time. But this is a .case, and we must look into the evidence to see if it sustains the verdict. There was uncontradicted evidence that the house and furniture were damaged to some extent, and the plaintiff was therefore entitled to a'verdict in some amount.

For this reason there must be a new trial, with costs to the appellant to abide the event.

The judgment and order should also be reversed.

Robertson, Ch. J.

There were two distinct causes of action set out in the complaint, in this case; one for breach of the covenant in the original agreement to pay the damages for the injury to the articles leased, and the other for not performing the award, and there was some evidence to sustain the former. Unless there was a valid award under the covenant to submit to arbitration, the plaintiff could not lose his right of action under such first covenant. It was error, therefore, to instruct the jury that “ their verdict must be for the-defendant,” if they found from the evidence “ otherwise” than that notice of the appraisement was given to the defendant, and that the arbitrator, in estimating the damage to the house and furniture, included only injury to it over and above the reasonable use and wear thereof. And that' the plaintiff could not recover,” if the arbitrator, in estimating the damages, included more than the excess of such injury, beyond such use and wear. To both of which instructions, the plaintiff excepted. It is evident that the learned judge who gave the instructions, either ignored the existence of a claim beyond the award, or that by the making of the award, although void, he lost such claim.

I think, also, there was error in submitting the question of notice of the appraisement to the jury, and instructing them to find for the defendant in case they found there was no such notice given. No such question was made by the pleadings. The answer did not set it up, and the complaint only alleged the making of an award in writing after a due and proper examination of the premises in question, and the answer took issue both upon the making of such award and such examination, but on them only. Prima facie, every decision of an arbitrator, upon any question submitted to him, is binding, and at common law is conclusively so. (Owen v. Boerum, 23 Barb. 187.) Any partiality, unfairness or misbehavior, on his part, is only a matter of relief in a court of equity, where the specific acts of misconduct must be set up. And although such acts may form the subject of an equitable defense, such a right will not render it unnecessary to set up such acts by way of defense, specifically. Besides, a want of proper notice to either party is only a matter to be taken advantage of by him who is so neglected; and which he may waive. (9 Loud, 691.) As to him, the award is voidable only, and not void. It is only void for errors on its face at common law, as in case of exercise of other common law powers. The plaintiff could not tell, in this case, until the trial, whether the defendant meant to rely on the award as a bar to an action on the covenant to pay for injuries, or to avoid the award for want of, notice.

But, in fact, there was no conflict of evidence as to notice. After the parties had agreed upon the day of meeting, the arbitrator testified that he wrote to the defendant proposing a later hour than one previously proposed by the latter, delivered the letter containing such proposition to the latter, who read it, and assented to the time, saying he would be on hand. The only evidence to combat this is the defendant’s testimony, that he had no recollection of an appointment made, except in his first proposal, or belief in any subsequent appointment of one. He admitted the receipt of such a letter, but had no recollection of answering it. The subsequent answer, to a question by the court, that he did not agree upon any time, was evidently founded, not upon recollection that he did not make any, but upon want of recollection that he did. There was, therefore, no conflict of evidence to be submitted to the jury. Informal notice of an informal appointment was all that was to be expected, and the positive testimony of the arbitrator is not to he weighed with the want of recollection of the defendant.

Eor these reasons, I concur in thinking the judgment, and order denying a new trial, should be reversed, with costs.

Moncrief, J. also concurred.

Judgment reversed.  