Borrowe v. Milbank

5 Abb. Pr. 28

Opinion

Oakley, Ch. J.,

announced, orally, the decision of the court,

* and stated the substance of the grounds of its judgment, in conformity with the reasons assigned in an opinion which had been prepared by Mr. Justice Bosworth, to which counsel were referred, as presenting more fully the views and conclusions of the court.

Bosworth, J.

If the allegations of the complaint make a case, establishing the fact that the umpire applied a rule of valuation different from that which the terms of his authority prescribed, his award should be set aside.

To value the property by a different rule from that which the terms of the authority required the umpire to apply, and to estimate the value by a rule on which he .had no authority to act, is as much a departure from the matters submitted, as to pass upon a matter not submitted, or to omit to consider a mat7 ter which was to be considered and covered by his decision. (Butler v. The Mayor, &c., 7 Hill, 329; Williams v. Goodrich, 4 Den., 194.) The complaint shows, that the umpire was required, by the terms of his authority, to value the lot “ at its full and fair worth at private sale, considering the same as an unencumbered vacant lot.”

He valued the lot at $2,800. The complaint charges, on information derived from the umpire, that he based his judgment “ solely on the sale * * of lot Ho. 735.” That was a contiguous lot. This statement is fairly open to the construction, that he valued the lot in question solely with reference to the price at which No. 735 had. been sold, which price was proved before him. That the lots being contiguous, he considered them, as substantially, of equivalent value, and took the price at which the one was sold, as the value of the other.

The complaint then avers, that lot No. 735 was sold to a person holding the unexpired term of a lease thereof, containing a covenant for the renewal thereof, upon the same terms and conditions as are contained in the lease in question.

Assuming this to be true, lot No. 735 was not sold as an unencumbered lot, and the price at which it was sold was- not the value of the lot as unencumbered. By taking the price of lot No. 735, and basing his judgment of the value of lot No. 738 “ solely on the sale * * of the lot No. 735,” and applying the price of the latter as the measure of the value of the former, the umpire exceeded his authority.

“ The plaintiffs therefore charge, that said appraisal and valuation as aforesaid, made by the said Samuel N. Dodge, was not made upon considering the same as an unencumbered vacant lot, but contrary to the covenant of renewal hereinbefore recited, and at a less value, and such valuation was without his powers as such umpire.”

Striking out the word “ therefore,” the allegation is sufficiently specific to admit proof, that lot No. 738, instead of being valued as a vacant and unencumbered lot, was valued by a rule which fixed to it a valuation less than the specified rule required, and less than the umpire would have found, if he had acted on the rule by which the authority required him to be controlled.

The word “ therefore,” in the position it occupies, does not detract from the force of the allegations' of the complaint, of which it forms a part.

The information which is previously stated is sufficient, in the matter of pleading, to justify the plaintiffs in stating in their complaint, upon information and belief, that the umpire applied the rule of valuation which the complaint alleges he did apply. If the nature and source of the information had not been disclosed, the complaint, in this respect, would have been unobjectionable. Stating the nature and source of the information does not vitiate it.

Although it be true that the letter of the umpire may justify the plaintiffs, as a matter of pleading, in stating upon information and belief that the facts are as the letter asserts, we must not be understood to intimate that, upon such facts being put at issue, the letter would be competent evidence, upon the trial, to establish the truth of such alleged facts.

It is true that the letter is not so precise as necessarily to exclude the conclusions that the umpire may have known that Ho. 735 was encumbered, and that he made an allowance on that account, in weighing as evidence, the price at which it was sold.

But looking at the letter of the umpire, and the averments which followed, we think the plaintiff might, with propriety, make the “ charge” or allegation in his complaint, that “ said appraisal and valuation, as aforesaid made by the said Samuel H. Dodge, was not made upon considering the same as an unencumbered lot, but contrary to the covenant of renewal herein-before recited, and at a less value, and such valuation was without his power as such umpire.”

The demurrer, by admitting the material allegations of the complaint to be true, admits that fact, and thus it is established by the pleadings as they stand, that the umpire exceeded his authority.

When an umpire or arbitrator exceeds his authority the effect of his act is the same, whether it was done consciously or by mistake.

When an arbitrator passes upon matters not submitted, or transcends his powers in disposing of those which are submitted, his award is void, because he has transcended his powers. Whether he did so through ignorance or design, it is unimportant to inquire.

The order appealed from must be affirmed.

Present, Oakley, Ch. J., and Duer, Bosworth, Slosson, and Woodruff, JJ.