
    The Birdsall Company, Resp't, v. Steven B. Ayres, App'lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 18, 1893.)
    
    1. Contract—Arbitration.
    While an action, brought to recover a balance due upon a contract to furnish asteam apparatus, was pending and upon the calendar,the parties entered into an agreement in writing, by which the cause went over the term, and a test was directed to be made of the apparatus by the defendant and one W., and in case defendant failed to do so, lie agreed to pay the balance due upon the contract, which he also agreed to do in case the test was satisfactory to W.; if not satisfactory, plaintiff agreed to make it so. Held, that the agreement was not an arbitration of the matter by W.
    2. Discontinuance—Reference.
    A consent to a reference of the issues in an action made in open court is a complete abandonment of any claim that a prior stipulation worked a discontinuance of the action.
    Appeal by the defendant, Steven B. Ayres, from a judgment of' the supreme court, entered in Yates county, August 1, 1892, on the report of a referee.
    
      Wm. T Morris (Thomas Carmody, of counsel), for app’lt;
    
      M. A. Leary, for resp’t.
   Macomber, J.

This action was brought to recover a balance due upon a contract made between the plaintiff and the defendant, whereby the former was to furnish a steam apparatus for heating the latter’s building. The substance of the answer is, that the plaintiff failed to comply with the terms of the contract in that the heating apparatus was defective, and was incapable of heating the block in question according to the terms of the agreement. While the case was pending and was upon the calendar of the circuit court, at the term held in June, 1891, the parties with their attorneys entered into an agreement in writing, by which the cause went over the term and a thorough test was directed to be made of the steam apparatus by the defendant under the supervision of one William H. Wise; “and in case said Ayres shall fail to do so, he hereby agrees to pay on demand the balance due upon the contract for steam heating between himself and the said Birdsall Company. If the test above mentioned is satisfactory to said Wise, said Ayres agrees to pay the balance due upon said contract upon demand, together with the costs of this action. If such test is not satisfactory, the said Birdsall Company shall, with all reasonable despatch, under the direction of said Wise, make the steam heating apparatus put in by them for said Wise satisfactory to said Wise, and when satisfactory to said Wise that plaintiff has performed the contract, said Ayres agrees to pay on demand the balance due upon said contract. ”

The result of this arrangement was, that Wise undertook to adjust the matter between the parties; examined the apparatus, and recommended certain changes, which it is not necessary to state in detail, costing the sum of $24.88, one-half of which, namely, $12.44, each party to this action should pay. This proposition was accepted by the parties, and the matter adjusted accordingly.

This disposition made by the expert, Wise, does not seem to have been made in pursuance of the terms of this contract. The counsel for the defendant now takes the position that the agreement in writing above mentioned removed the action from court, and was tantamount to an arbitration of the matters covered by the issues in the case. Accordingly, on motion, the court at special term allowed the defendant to bring into court the sum of $201, admitted by him to be due to the plaintiff, and ordered that unless the plaintiff should accept this sum in full discharge of the action, the same should be deducted from any recovery that might be obtained herein. This amount was duly tendered by the defendant to the plaintiff, and was refused because the tender did not cover the costs of the action. Subsequent to all of these negotiations and finesse, and at a subsequent term of the circuit held on the 23d day of May, 1892, upon consent given in open court by the attorneys of the respective parties, the cause was referred to the referee whose report is made the subject of this review.

The learned referee in his opinion clearly disposes of the contention made, that the written • agreement by which Wise should be employed to adjust the matters between the parties was an arbitration of the questions presented by the complaint and answer. He clearly points out the distinction to be taken between the office of arbitrator and that of Mr. Wise, which he characterizes as those solely of an expert.-

The judgment entered on his decision might be safely affirmed upon the grounds stated bv him; but we think that there is a further reason for it, and that is, that whatever view might have been taken of the written agreement between the parties appointing Wise to look into their matters of controversy, it is apparent, first, that the parties themselves mutually abandoned any effort to carry out the terms of that agreement; for Mr. Wise did not report in accordance with the terms of the stipulation, but made an independent suggestion outside of the same which the parties acquiesced in. Secondly, the consent to a reference of the issues presented by the pleadings was a complete abandonment of any claim which might subsequently be made that the stipulation made in June, 1891, worked a discontinuance of the action. Under this order of reference made by consent in open court, what else could the referee have done except to hear the case upon the merits as presented by the pleadings, and so hearing, decide it ?

He had no discretion in the premises. The order of reference necessarily implied that the action had not abated by reason of the written stipulation, but on the contrary, was in existence, and was to be brought to trial by the parties.

For these reasons, therefore, in addition to the cogent discussion of the question given by the learned referee, we think that the judgment appealed from should be affirmed.

Judgment appealed from affirmed.

Dwight, P. J., and Lewis, J., concur.  