
    New York Lumber & Wood-Working Co. v. Schneider et al.
    
    
      (Common Pleas of New Work, City and County, General Term.
    
    June 4, 1888.)
    1. Arbitration and Award—The Award—Presumption.
    The owners of houses made a contract with a company to do certain work therein, and there was a submission to arbitrators of all questions arising and to arise under the contract, including all damages of either party for non-performance, delay, or otherwise. Held, that on an award of a certain sum to the company, reciting that it was made after having heard the proofs and allegations of the parties, no proof to the contrary being shown, it will be presumed that the arbitrators passed upon damages alleged to have been sustained by the company by reason of the owners’ delay, interference, or misconduct.
    3. Same—Validity—Delivery.
    In a common-law arbitration, when no time is fixed in which the award is to be made, delivery thereof is not necessary.
    3. Same—Revocation—By Commencement of Suit.
    Under Code Civil Proc. N. Y. § 3383, providing that a revocation of an arbitration must be by an instrument in writing signed by the revoking party, commencement of suit in regard to the matters submitted is not a revocation.
    
      4. Same—Power of Arbitrators—Allowance of Costs and Expenses.
    A submission to arbitration, although it does not in terms confer power upon the arbitrators to charge the fees and expenses of the arbitration, vests that power in them as incident to their authority.
    5. Mechanic’s Lien—Waiver of Right by Submission to Arbitrators.
    The submission of the matters in dispute under a contract to do work upon premises to arbitration, is a waiver of the right to file notice of mechanic’s lien.
    Appeal from special term; George M. Van Hoesen, Judge.
    Action by the New York Lumber & Wood-Working Company against Morris Schneider and Abraham Schneider, to foreclose a mechanic’s lien. The parties had submitted the matters in dispute under the contract to arbitration, and the arbitrators made an award of a certain sum in favor of the company, less damages suffered by defendants on account of the company’s failure to perform, charging it with costs, first reciting that the award was made after having heard the proofs and allegations of the parties. The court dismissed the complaint, and plaintiff appeals. Plaintiff contended that partiality and unfairness in the arbitrators were shown by their not passing upon the question of damages suffered by the company by reason of defendants’ failure to perform, and also by their charging it with costs.
    
      Alan D. Kenyon, {Everett P. Wheeler, of counsel,) for appellant. A. P. & W. Man, (William Man, of counsel,) for respondents.
   Allen, J.

This is an appeal from a judgment of the special term dismissing the complaint after <a trial. On June 15, 1885, the plaintiff made a contract in writing with the defendants, by which it agreed to furnish and finish the wood-work in three houses of the defendants in One Hundred and Twenty-Third street, in the city of New York, by the 1st day of September, 1885. Disputes having arisen between the parties, they agreed to arbitrate these differences, and on September 9, 1885, a submission to arbitration was drawn up and signed, and the plaintiff was allowed, subject to defendants’ claim for damage by delay, to go on and finish the work, which was completed in March, 1886. The arbitrators commenced their proceeedings in March, and continued them until December, 1886, when they agreed upon an award. On the 18th day of March, 1886, the plaintiff filed a mechanic’s lien in the office of the county clerk, and in February, 1887, and after the award had been made by the arbitrators, commenced this action to foreclose such lien. The defendants’ answer set up the submission to arbitration and award as a plea in bar. The plaintiff served a reply to this defense, setting forth- several grounds upon which it claimed that the award was not bidding. The court held that the defendants’ plea of arbitrament and award was a good defense to the action, and. dismissed the complaint. The only subject presented for examination and decision uppn this appeal is the validity of the award of the arbitrators.

It is objected that the arbitrators did not pass upon all the questions submitted to them. From the written submission it appears “that all questions and disputes arising and to arise under said' contract, including all claims of either party for damages for non-performance, delay, or otherwise, ” were submitted to the arbitrators. All the matters which it is claimed the arbitrators failed to pass upon have reference to damages alleged to have been suffered by the plaintiff by reason of the defendants’ delay, interference, or misconduct.. These matters might have been, and probably were, considered in adjusting the amount of damages to be awarded to the defendants on account of the-non-performance or delay of the plaintiff. There is nothing on the face of the-award to show that they did not pass upon these claims, and there is no proof that they did not. We do not know what proofs were before the arbitrators-on this subject. There may have been none, or the arbitrators may have-found that those claims were not sufficiently proved, or they may have regarded them as established, and applied them in reduction of the defendants’ damages. The submission was a general one, and, when this is so, an award of a sum of money as due from one party to the other will be presumed to be a full execution of the submission. We do not think that the award upon its-face is inconsistent with a decision of all the questions submitted. When this is the case, and the arbitrators state that they have passed upon all the proofs- and allegations of the parties as submitted, in the absence of proof that they did not, there is a conclusive presumption that all questions submitted were-passed upon. The courts are always inclined to support the validity of am award, and will make every reasonable intendment and presumption in favor of its being a final, certain, and sufficient termination of the matters in dispute. The matters in dispute appeared to be the value of the material and labor furnished and performed by the plaintiff, and extra work, the amount-recovered on account thereof, and the claims of either-party for non-perform-once and delay. The reasonable intendment is that the arbitrators, in finding that the defendants had suffered certain damages by reason of the plaintiff’s-delay, passed upon the claims of both parties for non-performance, delay, or otherwise, and either found that the plaintiff had proved no damages, or considered such damages as he may have proved in awarding the sum they did allow to the defendants. We do not think that it appears that the arbitrators, neglected or refused to determine or pass upon any of the questions submitted-to them.

The other objections of the appellant to the award will be briefly considered.. - Both parties admit that the arbitration in this case was a common-law arbitration; therefore section 2372 of the Code, in reference to the filing or delivery of the award, does not apply, as that section refers exclusively to arbitrations under the Code. Delivering of the award to both parties is essential in-common-law arbitrations where, by the terms of the submission, the award is-to be made within a certain time. In the absence of any such provision the award is good before delivering. The cases cited by the learned counsel for the appellant were decided upon the ground that by the terms of the submission the award was to be delivered on or before a certain day. Ho time was. fixed for the delivering of the award in this case.

The commencement of this suit was not a revocation of the arbitration.. Section 2383 of the Code of Civil Procedure applies to all arbitrations. That: section provides that a revocation, when allowed, must be made by an instrument in writing signed by the revoking party or his authorized agent, and delivered to the arbitrators or one of them.

We think the arbitrators had authority to charge the plaintiff with fees and. expenses of the arbitration. There is some conflict in the decisions of other states as to the power of arbitrators in the matter of awarding costs of the arbitration, but in this state the rule may be regarded as well established that the power is incident to the authority of the arbitrators, and that it is not essential that it should be conferred in terms by the submission. Nichols v. Insurance Co., 22 Wend. 125; Cox v. Jagger, 2 Cow. 638; Strang v. Ferguson, 14 Johns. 161.

We agree with the learned judge before whom the case was tried that it was not proved that the arbitrators were not impartial and disinterested between the parties, or that in making their award they acted improperly, dishonestly,, or partially, or were moved by corrupt, improper, or dishonest motives; and we also agree with him in his conclusions that the right to file the notice of mechanic’s lien was waived and surrendered by the submission and arbitration, and that the plaintiff has no right in this action to recover the amount which the award declares to be due from the defendant. We can discover no error in the judgment of the special term, and think it should be affirmed.  