
    HUGH O’BRIEN v. THE HOME INSURANCE COMPANY.
    Argued November term, 1923
    Decided March 8, 1924.
    Arbitration and Award — Whether Arbitrators Were Properly Chosen, and Acted, Matter for Jury.
    On rale to- show cause, Essex Circuit.
    Before Gummere,, Chief Justice,, and Justices Minturn and Black.
    For the rule, Hudson <& Joelson.
    
    
      Contra,, William A. Lord.
    
   Per Curiam.

The suit was brought to recover upon a fire insurance policy upon a jitney bus. The defendant pleaded an appraisal agreement, an award and tender of payment under the award. The plaintiff denied that such appraisal was made in accordance with the requirements of the policy, which was that each party should elect an appraiser, and that the two should appoint an umpire, and contended that no umpire was appointed, and that the man who assumed to act as such was not authorized to do so. This is a second trial of the case, and we ought therefore to hesitate to set-aside a verdict rendered in favor of the plaintiff, either as against the weight of the evidence or as excessive. This verdict' was approximately the same as the first, and two such-concurring verdicts should not be set aside as contrary to the weight of the testimony;

It is also urged that there should have been a r jhsuit or a verdict directed upon the ground that an arbitration had been agreed upon, and that the award settled the rights of the parties. Whether such an arbitration had in fact been agreed upon, whether the party who 'assumed to act as umpire had authority to so officiate, was a question of fact which should not have been taken from the jury, and their determination in two successive instances upon that question should not be disturbed. ¡

We think the rule should be discharged.  