In re the Arbitration between Eisenstein & Rednick

Appellate Division of the Supreme Court of New York

In re the Arbitration between Eisenstein & Rednick

8 A.D.2d 794, 187 N.Y.S.2d 409, 1959 N.Y. App. Div. LEXIS 7927

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 18, 1959

StatusPublished

Cited by1 cases

This text of 8 A.D.2d 794 (In re the Arbitration between Eisenstein & Rednick) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re the Arbitration between Eisenstein & Rednick, 8 A.D.2d 794, 187 N.Y.S.2d 409, 1959 N.Y. App. Div. LEXIS 7927 (N.Y. Ct. App. 1959).

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Opinion

Order and judgment unanimously reversed on the law, without costs; the cross motion to vacate the awards is granted, and the controversy between the parties is remanded for an arbitration de nova before the American Arbitration Association. After an arbitration award had been made in favor of petitioner in the sum of $4,922.45, petitioner moved to modify the award and to enter judgment upon the award, as modified. Modification of the award was predicated upon a contention that the arbitrators had failed to include an item of $1,000 to which petitioner was entitled. However, it clearly appeared that no claim had been made before the arbitrators for the $1,000; and, in fact, petitioner had neglected to inform its own attorney about the matter. Respondent-appellant made a cross motion to vacate the award. ■ The motion to modify was granted to the “extent of remanding to the arbitrators the issue as to the award and the award should be increased by the sum of $1,000 ”. Thereafter, the arbitrators increased the award; and petitioner’s motion to confirm the award, as modified, was granted. Special Term had no power to remand the issues to the arbitrators. Once the arbitrators made their award they became funetus officio and “ without any power to alter or modify or do any other act under the submission”. (Herbst v. Hagenaers, 137 N. Y. 290, 294; 3 Am. Jur., Arbitration & Award, § 93.) The Civil Practice Act (§ 1462-a, subd. 1) gives the court the power to modify or correct an award where there has been an “ evident miscalculation of figures ”, Quite obviously that was not the situation here, for the arbitrators were not even presented with any evidence as to the $1,000 item. Neither party has contended that the original award be confirmed. Hence, it seems appropriate that the entire controversy should be remanded for a new arbitration. Concur —■ Botein, P. J., M. M. Prank, Valente, Stevens and Bastow, JJ.

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Order and judgment unanimously reversed on the law, without costs; the cross motion to vacate the awards is granted, and the controversy between the parties is remanded for an arbitration de nova before the American Arbitration Association. After an arbitration award had been made in favor of petitioner in the sum of $4,922.45, petitioner moved to modify the award and to enter judgment upon the award, as modified. Modification of the award was predicated upon a contention that the arbitrators had failed to include an item of $1,000 to which petitioner was entitled. However, it clearly appeared that no claim had been made before the arbitrators for the $1,000; and, in fact, petitioner had neglected to inform its own attorney about the matter. Respondent-appellant made a cross motion to vacate the award. ■ The motion to modify was granted to the “extent of remanding to the arbitrators the issue as to the award and the award should be increased by the sum of $1,000 ”. Thereafter, the arbitrators increased the award; and petitioner’s motion to confirm the award, as modified, was granted. Special Term had no power to remand the issues to the arbitrators. Once the arbitrators made their award they became funetus officio and “ without any power to alter or modify or do any other act under the submission”. (Herbst v. Hagenaers, 137 N. Y. 290, 294; 3 Am. Jur., Arbitration & Award, § 93.) The Civil Practice Act (§ 1462-a, subd. 1) gives the court the power to modify or correct an award where there has been an “ evident miscalculation of figures ”, Quite obviously that was not the situation here, for the arbitrators were not even presented with any evidence as to the $1,000 item. Neither party has contended that the original award be confirmed. Hence, it seems appropriate that the entire controversy should be remanded for a new arbitration. Concur —■ Botein, P. J., M. M. Prank, Valente, Stevens and Bastow, JJ.

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8 A.D.2d 794, 187 N.Y.S.2d 409, 1959 N.Y. App. Div. LEXIS 7927, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-arbitration-between-eisenstein-rednick-nyappdiv-1959.

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