
    Burnside v. Whitney.
    
      Action on Award.
    
    A common-law action will lie upon an award, though the submission provide that that judgment may be entered thereon in the county court.
    ,'Such action may be brought in the supreme court, before the next term of the county court, after the making of the award; if the defendant have any ground for relief against the award, he may move the county court for a stay of proceedings.
    'Burnside v. Whitney, 24 Barb. 633, affirmed.
    Appeal from the judgment of the Supreme Court, at .general term, in the sixth district, in an action upon an ■award. (Reported below, 24 Barb. 632.)
    "This wa.s an action upon an award. The submission was by writing under seal; and it was therein provided, that a judgment might be rendered in the count)7 court of Otsego 'county, upon the award made in pursuance therein. The award ivas dated the 12th September 1855, and provided that the defendant should pay to the plaintiff "the sum tof $56.50, within three days after the date thereof. The defence ivas, that no term of the Otsego ■county court had been held, after the publication of the ■award, and before the commencement of the action -thereon.
    The case was .tried before the court, without a jury. The judge gave judgment for the plaintiff, with costs; which having been affirmed by the general term, the defendant appealed to this court.
    
      jFerry, for the appellant.
    
      Estes, for the respondent.
   Denio, J.

It has been often held, that the statute, prescribing certain forms for submission to arbitrators, and allowing the parties to agree that a judgment of a court of record, designated in the instrument of submission, should be rendered "upon the award, was cumulative merely, not exclusive; and that an award pursuant to a submission which would have been valid at common law, but which did not conform to the statute, would support an action. (Browning v. Wheeler, 24 Wend. 258; Diedrick v. Richley, 2 Hill 271, and note.) Those cases accord with a general principle in the exposition oi; statutes, which declares that it is not to be presumed that the legislature intended to make any innovation upon the common law, further than the case absolutely requires. The law, it is said, presumes, that the act did not intend to make any alterations other than what is specified, and besides what has been plainly pronounced; but that intention, it is to be supposed, if it existed, would have been expressed. (Dwarris on Statutes 664.) The supreme court of Massachusetts appears to have taken a different view of their statute of arbitrations ; for in Deerfield v. Arms (20 Pick. 480), it was held, that an action of debt could not be sustained on an award, where the submission had not been properly acknowledged before a justice of the peace, as the statute required. It may be, that the act of Massachusetts contained language showing that the forms prescribed were applicable to all submissions to arbitration, whether a summary judgment was to be entered or not. However this may be, we are to follow the rule laid down by the courts of this state; and we think, moreover, that upon this question, the correct principle of construction has been adopted here.

But the defendant’s counsel argued, that the parties having, pursuant to the statute, agreed that a summary judgment might be entered upon this submission, no other mode'of enforcing the award can be resorted to. We think this position is answered, by an express provision contained in the statute itself. (2 R. S. 541.) It provides that a party complaining of the award may apply to the court designated in the submission, to set it aside, for certain causes which are specified; and that the application shall be made at the first term, if there be time, and if there be not, that a judge may stay the proceedings by order, till the following term. If the award is confirmed, the court is to render judgment upon it ; an(^ error may be brought *upon the determinatian of the court, whether it be in favor of or against the party claiming to enforce the award. (§§ 10-21.) Then follows § 22, which declares that nothing contained in the preceding provisions shall be construed to impair, diminish, or in any way affect the power and authority of the court of chancery over arbitrators, awards or the parties thereto; nor to impair or affect any action upon any award, or upon any bond or other engagement to abide by an award.

The intention of these provisions seems to me very plain. Either of the parties may, if they see fit, resort to the court named in the submission, in a summary way, to set it aside on the one hand, or to confirm and give judgment upon it on the other. But the party complaining is not to be precluded from availing himself of the more ample powers of the court of chancery, if he considers it for his interest to resort to them; nor is the party in whose favor the award is made to be barred of his common-law action on the award, or on the submission. 11 the party charged by the award elects to avail himself of the summary mode of objecting to it, and he is pursued by the other party by an action, before the term has arrived when the application can be made, he may have an order to stay the proceedings of his adversary, until the succeeding term. It follows, that the plaintiff in this case was not precluded from maintaining the action, nor limited to an application to enforce the award, by judgment in the court designated in the submission. The judgment appealed from must be affirmed.

Judgment affirmed. 
      
       The supreme court of Pennsylvania lias also taken an opposite view of this question, Benjamin v. Benjamin, 5 W. & S. 562; Lockwood v. Deming, 1 Pitts. R. 212.
     