
    The Giles Lithographic and Liberty Printing Company, Resp’t, v. The Recamier Manufacturing Company, App’lt.
    
    
      (New York Court of Common Pleas, General Term,
    
    
      Filed April 2, 1888.)
    
    1. Motion fob judgment on pleadings—May be gbanted—When denied.
    Though it is permissible to grant a motion for judgment on the pleadings, it will be denied if there is any reasonable doubt as to the insufficiency of the pleadings.
    2. Pleadings—Will be libebally constbued.
    A liberal construction will be given to an answer, because in case of its deficiency in substance final judgment must be given. The opportunity to amend at the trial is encumbered by disadvantages.
    3. Abbitbation—Submission and awabd may be by pabol.
    It is not necessary that an arbitration should be in the form prescribed by the Code of Civil Procedure. A common law arbitration is valid, and an award may be by parol.
    4. Same—What will excuse pabty fbom making tendeb of febfobmANCE OF AWABD. .
    A party to an arbitration who, without excuse, fails to perform the duty that the award casts upon him, cannot set up the award in bar of an action, but a refusal on the part of the other party to accept the award or abide by the decision of the arbitrator excuses him from making tender.
    The action was begun September 19, 1887, in the city court of New York, and the action was moved on for trial on the short cause calendar, and the learned justice presiding, upon a motion made in open court, granted judgment on the answer as frivolous.
    The defendant appealed to the general term of said court, where the judgment entered was affirmed, in an elaborate opinion written by Mr. Justice Hyatt, in which Mr. Justice Hall concurred, Mr. Justice Ehrlich dissenting without opinion; from that judgment the defendant appeals to this court.
    
      Horwitz & Hershfield, for resp’t; Vanderpoel, Green, Cuming & Goodwin, for app’lt.
    
      
       Reversing 12 N. Y. State Rep., 169.
    
   Van Hoesen, J.

Though the answer is drawn in a very slovenly manner, it must be liberally construed (section 519, Code 0. P.), and, because of the failure of the plaintiff to attack it before the trial had begun, it will be supported to the fullest extent permitted by the law. St. John v. North rup, 23 Barb., 26; Wall v. Buffalo Water Works Co., 18 N. Y., 119.

It was at one time held by the court of appeals (Smith v. Countryman, 30 N. Y., 665), that at the trial of an action it was not proper to grant a motion for judgment on the pleadings, and though a different view now prevails (Schuyler v. Smith, 51 N. Y., 309) it is a dangerous practice to allow either party to interpose an oral demurrer, at the trial, to the pleading of his adversary. If a pleading be substantially defective, the honest course is to demur to it, and thus give court and counsel a fair opportunity to examine and consider the question of law that is involved. If there be any reasonable doubt as to the insufficiency of the pleading, the court should deny a motion that is sprung at the trial for judgment on the pleadings.

It is not perfectly clear that the answer in this case is radically insufficient, though it cannot be denied that it is very badly drawn. I think that we can spell out of it a plea of arbitrament and award. I do not use the language of the answer, but aver that the plaintiff was to make for, and deliver to, the defendant, bottle wraps of cardboard or pasteboard, covered with lithographed paper, at the rate of $8.50 per thousand, but that instead of delivering wraps of cardboard or pasteboard, the plaintiff tendered wraps of their paper that were not worth more than four dollars per thousand; and that for the purpose of inducing the defendant to accept the thin wraps, the plaintiff knowingly, falsely and willfully with intent to defraud the defendant, represented that the thin wraps were of the same value as wraps of pasteboard or cardboard, and that the defendant, relying on those false representations, was induced to accept the thin wraps, which could not be used unless cardboard was employed to reinforce them; that the plaintiff and defendant agreed that the value of the thin wraps should be determined by an experienced lithographer, who should act as arbitrator, and, as such, fix the sum that the defendant should pay the plaintiff for them; that Joseph S. Knapp was agreed upon as the arbitrator, and he fixed the price of the thin wraps at $5.25 per thousand, which price the plaintiff refused to accept, though the defendant was and is ready and willing to pay it, and that the plaintiff refused to abide by the agreement to arbitrate and by the decision of the arbitrator.

The answer is fairly susceptible of this construction, though the looseness of its allegations leaves room for doubt as to whether I have correctly stated the exact meaning of the pleader. Of course, it would have been better if the answer had been so drawn that its meaning could not have been misunderstood. If a demurrer had been interposed, it is not impossible that acting upon the authority of Gihon v.Levy (2 Duer., 176), we should hold the answer to be insufficient as a plea of an award, for the answer in this case is quite as defective as it was in Gihon v. Levy.

But if a demurrer had been filed, leave to amend might have been granted, if it appeared that the defense had merits, and the terms upon which an amendment might be allowed could have been carefully considered.

The trial term affords no opportunity for dealing with questions of that description, and if the pleading, through a blunder of the pleader, be deficient in substance, final judgment is pronounced. A motion to amend either at the trial term or after a direction for judgment has been entered, if entertained at all, is loaded with disadvantages that ought not to bui’den a bona fide application to perfect a pleading.

It is for this reason that we feel bound to look with the utmost indulgence upon this answer with all its imperfections, and as the case was disposed of by the court below without considering whether the answer was bad because the defendant had no defense, or merely because a good defense had been unskillfully pleaded, we shall give a liberal construction to the pleading, and inquire if the plea of arbitrament and award does not present a defense.

At the trial term, Justice Nehrbas said that “as the answer admitted the agreement under which the wraps were manufactured, and the claim of the plaintiffs,’ an arbitration could not bar the plaintiff’s right to recover the full amount agreed to be paid.” But the defendant did not admit the plaintiff’s claim, and I am at a loss to understand why the learned justice regarded the denial made by the defendant as an admission.

At the general term, the plea of arbitrament and award was disregarded because “ the arbitration was not under the statute, and the forms and procedure required by the statute were not followed.”

It is evident that the court supposed that a common law arbitration was no longer recognized in this state, and that all arbitrations must be conducted in the manner prescribed bp the Code of Civil Procedure. This view is erroneous. A common law arbitration is still valid, and the submission, as well as the award, may be by parol. Wells v. Lain, 15 Wend., 99; Diedrick v. Richley, 2 Hill, 271; McNulty v. Solley, 95 N. Y., 242.

The answer explicitly alleges a mutual agreement of the parties to submit to arbitration the dispute as to the sum that the defendant ought to pay for the thin wraps. Even if this agreement were by parol, it was valid. The arbitrator to be selected was to be an experienced lithographer, qualified by his personal knowledge to appraise the value of the wraps. Such an agreement is valid, for it was competent to the parties to submit the question of value to the judgment of the arbitrator upon his inspection of the goods, and without requiring testimony to be taken. Wiberly v. Matthews, 10 Daly, 153; 91 N. Y., 648.

The answer alleges that the arbitrator fixed and determined the price that the defendant should pay for the wraps. This allegation is tantamount to an averment that the award was published; and as the award was oral, to publish it was to deliver it.

It has been held in England, that “ where the award has only decided what is due, and ascertained its amount, the money payable under the award is nothing but the original debt, so ascertained in amount, and therefore the plea of arbitrament and award is bad, unless payment of the amount awarded be also alleged.” Allen v. Milner, 2 C & J., 47, S. C., 2 Tyrw, 113. The case of Allen v. Milner has never been accepted in this state as a correct exposition of the law; and in Brazill v. Isham (12 N. Y., 16), Ch. J. Gardner pointed out the fallacies that had misled Chief Baron Lyndhurst. It was not essential to the validity of the plea that payment of the amount awarded should be alleged.

But the defendant gave a good excuse for its failure to perform the award, namely, that the plaintiff' refused to accept the sum awarded, or to abide by the decision of the arbitrator. If this averment be true, the defendant was excused from making a tender. Bunge v. Koop, 48 N. Y., 225; Blewett v. Baker, 58 N. Y., 611.

The answer must then be taken as establishing that the amount to which the plaintiff is entitled is not the sum claimed in the complaint, but that awarded by the arbitrator.

“ If,” said Chief Justice Gardner, in Brazil v. Isham (supra),a person be selected to state an account between men, who agree to abide by his report, the report has the same effect as though the parties had themselves stated the account, and agreed upon the balance. In such a case, it would not bar the original cause of action.” The plaintiff would not, however, be entitled to recover more than the amount fixed and determined by the arbitrator.

But, if instead of being charged with the mere duty of settling an account between parties, a person is “ clothed with authority to decree payment according to his .judgment upon their duties and obligations, his adjudication, if fairly made, is as effectual a bar to an action for the same cause, as would be a decree of a chancellor.” Ch. J. Gardner in Brazil v. Isham, 12 N. Y. (supra).

A party to an arbitration who, without excuse, fails to perform the duty that the award casts upon him is not permitted to set up the award in bar of an action, “ for it is against natural justice to make one default and wrong an excuse for another; but if the party malee a timely and proper tender, and the other refuse to receive it, then the award is a good plea in bar, it being the fault of the latter, and hath still a remedy for the money.” Bacon’s Abridgment, Arbitrament and Award Gr.

In any event, if the answer be true, the defendant should not be compelled to pay a greater sum than that awarded by the arbitrator; and if the arbitrator were authorized to decide, not merely a question of authoritical calculation, but one of legal obligation and legal right, his award, followed by the refusal of the plaintiff to "abide by it, or to accept the sum awarded, is sufficient to bar the present action.

The judgment of the city court should be reversed, and a new trial ordered, with costs of this appeal to the appellant to abide the event.

Allen, J., concurs.  