
    LEACH against WEEKS.
    
      Supreme Court, First District; Special Term,
    
    
      December, 1866.
    Arbitration.—Setting aside Award.
    In a'special statute authorizing arbitrations and the entry of judgments upon the awards, a provision that such a judgment shall not be modified except for fraud, collusion, or corruption (Laws of 1862, 605, ch. 359, § 7), does not preclude the court from setting aside such a judgment, if the arbitrators, by reason of exceeding the submission, had no jurisdiction to make the award in question.
    The submission of the question whether goods delivered corresponded to the sample by which they were sold, and must be accepted, does not authorize the arbitrators to award damages for a refusal to accept, the goods.
    Motion to set aside judgment and execution.
    The plaintiffs in the judgment in this case were Augustus M. Leach and Horace E. Smith. The defendants were Foster J. Weeks and Freeman.
    The New York Commercial Association was incorporated by an act of the Legislature, passed April 19th, 1862.
    The fifth section of this■ act. authorized the election .of an arbitration committee of five members, whose duty it should be to hear and decide controversies which might be voluntarily •submitted to them for arbitration. Section six of the act prescribes the form of the award by directing that it shall be signed by all the members of the committee, and provides for • entering judgment upon the award; and this section further . provides that such judgment shall not be subject to be removed, , reversed,, modified, or in any manner appealed from by the parties thereto, except for frauds, collusion, or corruption of said arbitration committee, or some member thereof.
    On October 15th, 1866, the plaintiffs and the defendants sub- : mitted to the arbitration committee the question whether three hundred barrels “ Lawrence Go. Mills ” delivered by Messrs. Leach, & Smith to Weeks & Freeman as per contract of sale, was equal to sample by which the same was sold, and said Weeks &' Freeman shall or shall not accept the same pursuant to such purchase. In a few days afterwards the defendants received from the plaintiffs a paper signed by the chairman and secretary of the arbitration committee, stating that the committee had decided that in their judgment, and in that of an expert to whom the samples were referred, there was little or no difference, and “ that Weeks & Freeman must take and pay for the 'flour at the pinchase price and the expense of storing,” &e. Afterwards and on November 7th, 1866, the defendants received from the secretary of the arbitration committee an award dated October 31st, 1866, signed by all the members of the committee, deciding, on the judgment of the committee and of an expert- to whom the samples were referred, that “ there was little or no difference,” &c.; that Weeks & Freeman had refused to take and pay for the flour; that there was a difference of one hundred and fifty dollars between the price which they agreed to pay for it, and its market value on the day when they should have taken it; that the cost of storing was thirty dollars, and that Weeks & Freeman should pay the alleged difference between the market value and the purchase price, and also the cost of storing.
    Simultaneously with this award, Weeks & Freeman received from the secretary of the arbitration committee an extract from the proceedings of the committee on October 31st, by which extract it appeared that the committee had on October 31st, received on the part of the plaintiffs, evidence on which them award was. based; and the affidavit made here on the part of the defendants alleged that the proceedings of October ¿1st were had in their absence and without notice to them.
    Upon this second award, judgment was entered on November 5 th, and execution issued, and levied ; and-Weeks & Freeman now move, on the judgment roll and on affidavit, to set aside the award, and the judgment, and execution.
   Ingraham, J.

The charges of collusion are disproved by. the affidavits of Sage & Boughton, and the judgment cannot be interfered with on that ground. The difficulty in sustaining the judgment is that the committee exceeded their powers and decided matters not submitted to them. Although the statute designates frauds, collusion, or corruption of the arbitrators as the oidy reasons for setting aside the judgment,- yet that does not refer to jurisdiction. If the committee had no jurisdiction, the award cannot be sustained.- Suppose no submission had been made, and the committee had made an award on which judgment was entered, no one would pretend that it could not be vacated. So where- the submission was of one matter and the arbitrators decided upon other matters, the award would be void.

In the present case the parties submitted to the committee the question whether three hundred barrels of flour delivered by the plaintiffs to the defendants were equal to the sample, and whether the defendants should accept the same under the contract. The first award conimunicated to the parties, was in accordance with the submission, but from some informality it was treated as a nullity, and the committee made a new award, finding, first, that there was little or no difference, not enough to warrant a rejection of the flour; then, as the defendants had refused to pay for the flour, they awarded to the plaintiffs, damages for refusing to take it at the difference between the price agreed on and the market price on the day fixed in the contract for payment. This question was not submitted to the arbitrators, and they had no authority to pass upon it. If the parties did not comply with the award, it could have been enforced by a judgment or by an action for damages, but -the committee exceeded their powers in assessing the damages for refusal.

The motion must be granted.  