Dinerstein v. Shapiro

Appellate Terms of the Supreme Court of New York

Dinerstein v. Shapiro

147 Misc. 37, 262 N.Y.S. 461, 1933 N.Y. Misc. LEXIS 1495

CourtAppellate Terms of the Supreme Court of New York

DecidedJanuary 21, 1933

StatusPublished

Cited by1 cases

This text of 147 Misc. 37 (Dinerstein v. Shapiro) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dinerstein v. Shapiro, 147 Misc. 37, 262 N.Y.S. 461, 1933 N.Y. Misc. LEXIS 1495 (N.Y. Ct. App. 1933).

Pincite

Opinion

Per Curiam.

Order unanimously reversed upon the law, with costs, and judgment directed for plaintiff for the amount sued for, with appropriate costs in the court below.

There was no error in receiving the evidence that was eventually stricken out. Proof of the award, itself, could have been given. (Wood v. Tunnicliff, 74 N. Y. 38, at p. 46; Keen v. Batshore, 1 Esp. 194; 170 Eng. Rep., Full Reprint, 325; Nisi Prius, book 1; Slack v. Buchannan, Peake, 6; 170 Eng. Rep. 59; Kingston v. Phelps, Peake, 299; 170 Eng. Rep. 163; 5 C. J. p. 168, § 412.) The parties had agreed to arbitrate. This required no writing. (French v. New, 28 N. Y. 147.) The arbitrators had found in favor of the plaintiff. By consenting to the arbitration, the defendant taetitly admitted that whatever was found due by the arbitrators was in fact due from him to the plaintiff. The award was, for some purposes, as binding as a judgment. (New York Lumber & Wood-Working Co. v. Schnieder, 119 N. Y. 475, 481.) The verdict should not, therefore, have been set aside. Defendant made no objection to the submission of the questions in the form they were submitted. There was evidence justifying the form adopted by the court. No objection was made that they varied from the complaint. In effect, there was no material variation. The credibility of the plaintiff as well as that of the defendant was for the jury.

Present, Cropsey, Faber and MacCrate, JJ.

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Per Curiam.

Order unanimously reversed upon the law, with costs, and judgment directed for plaintiff for the amount sued for, with appropriate costs in the court below.

There was no error in receiving the evidence that was eventually stricken out. Proof of the award, itself, could have been given. (Wood v. Tunnicliff, 74 N. Y. 38, at p. 46; Keen v. Batshore, 1 Esp. 194; 170 Eng. Rep., Full Reprint, 325; Nisi Prius, book 1; Slack v. Buchannan, Peake, 6; 170 Eng. Rep. 59; Kingston v. Phelps, Peake, 299; 170 Eng. Rep. 163; 5 C. J. p. 168, § 412.) The parties had agreed to arbitrate. This required no writing. (French v. New, 28 N. Y. 147.) The arbitrators had found in favor of the plaintiff. By consenting to the arbitration, the defendant taetitly admitted that whatever was found due by the arbitrators was in fact due from him to the plaintiff. The award was, for some purposes, as binding as a judgment. (New York Lumber & Wood-Working Co. v. Schnieder, 119 N. Y. 475, 481.) The verdict should not, therefore, have been set aside. Defendant made no objection to the submission of the questions in the form they were submitted. There was evidence justifying the form adopted by the court. No objection was made that they varied from the complaint. In effect, there was no material variation. The credibility of the plaintiff as well as that of the defendant was for the jury.

Present, Cropsey, Faber and MacCrate, JJ.

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147 Misc. 37, 262 N.Y.S. 461, 1933 N.Y. Misc. LEXIS 1495, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dinerstein-v-shapiro-nyappterm-1933.

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