
    (May 8, 1951.)
    In the Matter of the Arbitration between Oscar Frajer, Doing Business as Anglo American Export Company, Respondent, and Sam Chernofsky, Individually and Doing Business as Folsam Hosiery Company, Appellant.
   Per Curiam.

The fifth arbitrator was not sworn, nor is there adequate proof that notice was given to appellant of the hearing after selection of the fifth arbitrator, who actually decided the ease. Order granting motion to confirm the award and the judgment entered thereon should be reversed, with costs to appellant and the motion denied and appellant’s cross motion to vacate the award granted, and the matter resubmitted to the same arbitrators.

Dore, J.

(dissenting). The arbitration agreement provided that if the four arbitrators could not agree a “fifth impartial person shall be selected by the arbitrators to make the final decision which shall be binding upon both parties.” The four could not agree and the fifth impartial person was chosen who made an award of $500 to petitioner, the. buyer. The seller on appeal from a final order confirming the award raises various objections. The reasons advanced for vacating the award are without merit. None of the arbitrators was sworn, and the arbitrators’ oath was waived by the parties. The proof is sufficient to show that appellant had notice of the hearing before the fifth impartial arbitrator. The record shows that to the arbitrators originally chosen by appellant, an award of $300 was satisfactory and accordingly appellant’s real grievance is not addressed to the finding, but to the amount of the award or the difference between $300 and $500. That was a question of fact to be determined by the fifth impartial arbitrator or umpire whose decision by the terms of the contract was to “ be binding upon both parties ”. In our opinion this appeal is inadvisedly taken and if the order appealed from is reversed the result will be added and unnecessary delay and expense to all parties. If this sort of thing is encouraged, arbitration instead of being an avoidance of litigation will be provocative thereof. Interest reipublicae ut sit finis litium.

Accordingly I dissent and vote to affirm the judgment and order appealed from, with costs to petitioner respondent.

Callahan, J., Van Voorhis and Sheintag, JJ., concur in Per Curiam opinion; Dore, J., dissents and votes to affirm the judgment and order appealed from in an opinion in which Glennon, J. P., concurs.

Order granting motion to confirm the award and the judgment entered thereon reversed, with costs to the appellant and the motion denied, and appellant’s cross motion to vacate the award granted and the matter resubmitted to the same arbitrators. Settle order on notice.  