Humphreys v. Gardner

11 Johns. 61

• Court: New York Supreme Court
• Decided: January 15, 1814
• Status: Published

Opinion

Per Curiam.

It was proved upon the trial, by Colden, that on the 1st of May, 1810, there was a dispute between the defendant, Gardner, and one Ross, as to which of them belonged the right to let the house in question to Humphreys, and Humphreys being then in the act of moving in, it was agreed by Gardner and Ross, in the presence of Humphreys, to submit to two persons, then named as arbitrators, to determine to which of them Humphreys was to pay the rent for the ensuing year. The two arbitrators prove the same facts substantially, and one of them says he thinks Humphreys spoke to him and wished the question decided, and a son of Humphreys, introduced by him, also stated the same controversy and submission, as stated by Colden, and that Humphreys said, at the time of the altercation, that he wished Gardner and Ross would determine to whom he should pay the rent, and the submission to arbitration was thereupon made. The arbitrators met and heard the allegations of Ross and Gardner, and decided in the same month of May, 1810, that the rent ought to be paid to Gardner. Upon these facts, the question of notice to Humphreys of the award does not arise, lie was bound to take notice of the award at his peril, for he was present when it was submitted to the arbitrators to determine to whom he should pay the rent, and it was in proof that he was privy to the submission, and the conclusion is irresistible that it was so referred with his approbation. The parties claiming respectively the right to let, interpleaded, as it were, in his presence, and agreed to refer the question to the arbitrators, and he entered into possession with the knowledge of that interpleader and submission, and at the time it took place.

A new trial ought, therefore, to be awarded, with costs to abide the event of the suit.

New trial granted.