Jacoby v. Johnston

New York Supreme Court

Jacoby v. Johnston

3 Thomp. & Cook 747, 8 N.Y. Sup. Ct. 242

DecidedMay 15, 1874

StatusPublished

This text of 3 Thomp. & Cook 747 (Jacoby v. Johnston) 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

Jacoby v. Johnston, 3 Thomp. & Cook 747, 8 N.Y. Sup. Ct. 242 (N.Y. Super. Ct. 1874).

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Opinion

Davis, P. J.

The submission to arbitration of the subject-matter of this action was full and absolute. Its effect would have been a discontinuance of the action, but for the clause making special provision in relation to the action. That clause provides, “That the action in the supreme court aforesaid, and all proceedings therein or in relation thereto, shall he stayed pending the award of said arbitrators.”

The stay of proceedings thus provided for indicates an intention not to have the submission operate as an' absolute discontinuance, as otherwise it would have done. It does, however, operate as a perpetual stay “ pending the award,” which must be construed to mean until the award is made. The making of the award, in the absence of any stipulation for the entering of judgment upon the same in the action, would at once operate as a final discontinuance of the suit; so that, practically, while the submission remains in force, the suit in court is completely suspended. Neither party has revoked the submission. A revocation, to put an end to the [748]*748submission, must be made with the same formality as the submission itself.

The submission being in writing and under seal, it must be revoked with like solemnity. Van Antwerp v. Stewart, 8 Johns. 125; Howard v. Cooper, 1 Hill, 44; Robertson v. M’Niel, 12 Wend. 578, 582. The effect of the submission, while remaining in force, is to stay, absolutely, all proceedings in the suit. Larkin v. Robbins, 2 Wend. 505; Camp v. Root, 18. Johns. 22; Jordan v. Hyatt, 3 Barb. 275; Wells v. Lain, 15 Wend. 99; Van Slyke v. Lettice, 6 Hill, 610; 11 How. 355. The plaintiff was not, -therefore, at liberty to take any steps in the action, after the submission. The motion to discontinue, under the circumstances, was properly denied, but the cause should have been stricken from the calendar, under the stay of proceedings. The order appealed from should be modified so as to deny the motion for discontinuance, and grant that part asking that the case be struck from the calendar, and, as so modified, affirmed, without costs.

Daniels and Beady, JJ., concurred.

Order as modified, affirmed.

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Davis, P. J.

The submission to arbitration of the subject-matter of this action was full and absolute. Its effect would have been a discontinuance of the action, but for the clause making special provision in relation to the action. That clause provides, “That the action in the supreme court aforesaid, and all proceedings therein or in relation thereto, shall he stayed pending the award of said arbitrators.”

The stay of proceedings thus provided for indicates an intention not to have the submission operate as an' absolute discontinuance, as otherwise it would have done. It does, however, operate as a perpetual stay “ pending the award,” which must be construed to mean until the award is made. The making of the award, in the absence of any stipulation for the entering of judgment upon the same in the action, would at once operate as a final discontinuance of the suit; so that, practically, while the submission remains in force, the suit in court is completely suspended. Neither party has revoked the submission. A revocation, to put an end to the [748]*748submission, must be made with the same formality as the submission itself.

The submission being in writing and under seal, it must be revoked with like solemnity. Van Antwerp v. Stewart, 8 Johns. 125; Howard v. Cooper, 1 Hill, 44; Robertson v. M’Niel, 12 Wend. 578, 582. The effect of the submission, while remaining in force, is to stay, absolutely, all proceedings in the suit. Larkin v. Robbins, 2 Wend. 505; Camp v. Root, 18. Johns. 22; Jordan v. Hyatt, 3 Barb. 275; Wells v. Lain, 15 Wend. 99; Van Slyke v. Lettice, 6 Hill, 610; 11 How. 355. The plaintiff was not, -therefore, at liberty to take any steps in the action, after the submission. The motion to discontinue, under the circumstances, was properly denied, but the cause should have been stricken from the calendar, under the stay of proceedings. The order appealed from should be modified so as to deny the motion for discontinuance, and grant that part asking that the case be struck from the calendar, and, as so modified, affirmed, without costs.

Daniels and Beady, JJ., concurred.

Order as modified, affirmed.

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