Myers v. Dixon

2 Hall 456

• Court: The Superior Court of New York City
• Decided: October 15, 1829
• Status: Published

Opinion

Oakley, J.

This case comes before us on a general demurrer to the defendant’s plea to the first count of the declaration. That count sets forth, 1. That mutual bonds of submission to arbitration, dated the 9th of February, 182.9, were executed by the parties, by which the award was to be made, on or before the 25th day of February. 2. That before that period, the time for making the award was extended by the parties to the 6th of March, and that it was agreed, that an award, to be made within such extended time, should be binding. 3. That an award was made within such enlarged time;—and the count then sets forth a breach of the award, on the part of the defendant, in the non-payment of the money awarded. The plea sets forth the bond and its conditions, together with the award, by which it appears that the latter was made after the expiration of the time limited for making it, in the conditions of the bond. To this plea the plaintiff demurs.

The question sought to be raised by the defendant in this case, is, whether an action of debt can be sustained on an arbitration bond, when the award is not made within the time specified in the conditions of the bond, though the parties may have extended that time by a new agreement. It seems to be settled, in such a case, [Freeman v. Adams, 9 J. R. 115,] that the action must be on the submission implied in the new agreement. The defendant here, however, seems to have mistaken the nature of the action, as set forth in. the plaintiff’s first count. It is not founded on the bond, but on the submission made by the new agreement, and on the award made in pursuance of it. The count sets forth all the circumstances,—the bond, the enlargement of the time, the agreement that the award shall be binding, and the award itself. It is strictly appropriate to the case, and the plea is clearly no answer to it. There must be judgment for the plaintiff on the demurrer.

Judgment for the plaintiff, with leave to the defendant, &c.

[Geo. W. Strong, Att'y for the plff. Horace Holden, Att'y for the deft.]