
    
      In re Union El. R. Co. In re Bennett.
    
      (Supreme Court, General Term, Second Department.
    
    February 12, 1890.)
    1. Arbitration and Award—Procedure.
    An agreement between an elevated railroad and an abutting land-owner to arbitrate the question of damages, which provides that judgment should not be entered of record until the expiration of 10 days after the cars should be run on the road, and limits an appeal by either party to 10 days after the judgment is rendered, is not violated by an application by the land-owner. 9 days after the award was made, for its confirmation, in order that an immediate judgment might be entered, so as to expedite an appeal proposed to be taken by the company.
    2. Same—Conduct or Arbitrators.
    The agreement also provided that “the arbitrators, by a majority vote, may exercise their discretion as to the manner and way in which to inform themselves of the matters and things in dispute. They may refuse to hear witnesses and counsel, and proceed to a final determination in whatever manner they may by a majority vote decide. ” Held, that it was not against the meaning or intent of this provision for one of the arbitrators to read questions and answers in another case of damages to abutting owners in support of his views.
    Appeal from special term, Kings county.
    Arbitration between Michael Bennett and the Union Elevated Bail road Company. Judgment was entered on the award of the arbitrators in favor of Bennett, and the company appeal.
    Argued before Baenaed, P. J., and Dykman, J.
    
      
      Wingate & Cullen, for appellant. John J. Leary, for respondent.
   Barnard, P. J.

The Union Elevated Railroad Company constructed its road along Fifth avenue, in Brooklyn, in front of Michael Bennett’s property. The'company and Bennett agreed in writing to arbitrate the question of the damages resulting to Bennett’s property thereby. By the agreement the arbitrators were to determine the method of trial, and were at liberty to refuse to hear witnesses, though they might do so. The judgment was not to be entered of record until the expiration of 10 days after the cars should be run upon the road, and upon failure to pay the award by the company. There was a provision that, if either party wished to appeal, such appeal must be taken within 10 days after the judgment was rendered. The company desired an appeal, and the land-owner applied, on the ninth day after the award was made, for its confirmation, with a view of the entry of an immediate judgment, so as to expedite this appeal.. This did not violate either the spirit or letter of the arbitration agreement. The intent of the parties was to await the entry of judgment until 10 days after the cars run. It was a term of credit to the company, and not a means of postponing the entry of judgment when it was to be the basis of an appeal. When the award was confirmed the cars had been running for a considerable period.

The arbitrators voted to receive no testimony. After the submission, it is claimed that evidence was received on the part of Bennett. The proof fails to substantiate this. The arbitrators differed as to the question submitted, and ofle of the arbitrators bad questions and answers in another case of damages to abutting owners, and he read these in support of his views, neither Bennett, the railroad company, nor their counsel was cognizant of this fact. The discussion of the evidence in another case was not a violation of the arbitration agreement, which contains this clause: “Second. That the arbitrators, by a majority vote, may exercise their discretion as to the manner and way in which to inform themselves of the matters and things in dispute. They may refuse to hear witnesses and counsel, and proceed to a final determination in whatever manner they may, by a majority vote, decide.” It was not against the meaning or intent of this clause that one of the arbitrators urged in support of his views information acquired by the answers and opinions of other persons in a legal trial. There was no reception of the minutes as evidence. The arbitrators could inform themselves upon the question before them by reading, and even conversation with persons well informed, or who were supposed to be so. The case of Halstead v. Seaman, 82 N. Y. 27, does not bear on the question. In that case there was no clause authorizing the arbitrators to reject evidence, and it was held that they could not refuse to hear it if offered. The orders appealed from should therefore be affirmed, with costs.  