
    The R. H. Howes Construction Company, Respondent, v. The Childs Dining Hall Company of New Jersey, Appellant.
    Appeal from a judgment of the Supreme Court in favor of the plaintiff, entered in the New York county clerk’s office on December 24, 1925, pursuant to an order, made at the New York Special Term and entered on the same day, granting plaintiff’s motion to confirm the award of arbitrators; and also from the said order directing entry of judgment; also from so much of an order entered on January 6, 1926, as denies defendant’s motion to vacate the award, the order confirming the award and the judgment entered thereon, and also from an order entered on January 26, 1926, resettling said order of January 6, 1926.
    Judgment and orders affirmed, with costs. No opinion. Present — Clarke, P. J., Merrell, Finch, Martin and Burr, JJ.; Finch, J., dissents.
   Finch, J. (dissenting).

The failure of the arbitrators to allow the defendant for certain substantial items, one of which was concededly furnished by the defendant and not by the contractor, added to the other evidence, shows clearly ‘that the counterclaims were not passed upon and makes necessary the vacating of the award. Whether or not the award should stand was the issue before the court at Special Term. In the disposition of this issue this court undoubtedly has the power, when reversing the order denying the motion to vacate, to give effect to its decision upon this question by also vacating the order confirming the award and the judgment entered thereon. I, therefore, vote to reverse the order denying the motion to vacate the award and to grant said motion, and to vacate the order confirming the award and the judgment.  