In re Di Carlo

New York Supreme Court

In re Di Carlo

13 N.Y.S. 83, 66 N.Y. Sup. Ct. 360, 36 N.Y. St. Rep. 550, 59 Hun 360, 1891 N.Y. Misc. LEXIS 967

DecidedJanuary 16, 1891

StatusPublished

This text of 13 N.Y.S. 83 (In re Di Carlo) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Di Carlo, 13 N.Y.S. 83, 66 N.Y. Sup. Ct. 360, 36 N.Y. St. Rep. 550, 59 Hun 360, 1891 N.Y. Misc. LEXIS 967 (N.Y. Super. Ct. 1891).

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Opinion

Van Brunt, P. J.

We do not see how the court can acquire jurisdiction to set aside this award upon motion. It is not the result of an arbitration under the Code, and therefore the provisions of the Code were not applicable to it; and it is only where it is expressly provided by statute that the court may acquire jurisdiction by motion that it can acquire jurisdiction otherwise than by action. This arbitration not being a statutory arbitration which could possibly result in a judgment, as already suggested, the provisions of the Code as to motions in respect to the award do not apply; and, if any injustice has been suffered upon the part of the moving party, such injustice must be redressed by action. This objection, however, it does not appear was taken in the court below, and therefore we think that the order appealed from should be reversed, without costs, and the motion dismissed. Alt concur.

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Van Brunt, P. J.

We do not see how the court can acquire jurisdiction to set aside this award upon motion. It is not the result of an arbitration under the Code, and therefore the provisions of the Code were not applicable to it; and it is only where it is expressly provided by statute that the court may acquire jurisdiction by motion that it can acquire jurisdiction otherwise than by action. This arbitration not being a statutory arbitration which could possibly result in a judgment, as already suggested, the provisions of the Code as to motions in respect to the award do not apply; and, if any injustice has been suffered upon the part of the moving party, such injustice must be redressed by action. This objection, however, it does not appear was taken in the court below, and therefore we think that the order appealed from should be reversed, without costs, and the motion dismissed. Alt concur.

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Bluebook (online)

13 N.Y.S. 83, 66 N.Y. Sup. Ct. 360, 36 N.Y. St. Rep. 550, 59 Hun 360, 1891 N.Y. Misc. LEXIS 967, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-di-carlo-nysupct-1891.