Opinion
January 8, 1909.
Alfred B. Jaworower, for the appellant.
Bernhard Ginzburg, for the respondent.
On October 25, 1907, Frank Marcus and David V. Picker entered into an agreement to submit to arbitration a certain controversy which had arisen between them. On November 7, 1907, the arbitrators executed an award in favor of Picker. No motion was made to vacate, modify or correct it, and on March 28, 1908, the successful party noticed a motion to be heard on July 30, 1908, for an order confirming the award and for judgment thereon. Marcus, the defeated party, opposed the motion upon an affidavit intended to show misconduct on the part of the arbitrators. The motion was, however, granted, and a judgment entered in favor of Picker and against Marcus for the amount found due by the award. Marcus has now appealed from the order confirming the award, and also from the judgment. No appeal lies from the order. Section 2381 of the Code of Civil Procedure provides that "An appeal may be taken from an order vacating an award, or from a judgment entered upon an award, as from an order or judgment in an action." The only appeal from an order, therefore, is when it vacates an award. When a judgment has been entered upon an award the appeal must be from the judgment. The appellant in this case has, however, appealed from the judgment as well as from the order, and the appeal from the latter may be disregarded. The affidavit upon which the motion to confirm the report was based set forth that the appellant Marcus received a notice to attend a meeting of the arbitrators on Saturday, November 2, 1907, at the office of one of the arbitrators; that he attended at the time and place appointed, but Picker did not attend; that Morris Asinoff, one of the arbitrators, who seems to have acted as the mouthpiece of the board, then stated that the hearing of the arbitration would be adjourned to the following day, Sunday, November 3, 1907, to which appellant objected, saying that he did not want hearings to be held on Sunday. Notwithstanding his protests and objections the hearing was adjourned until Sunday. On Sunday, November 3, 1907, the appellant again appeared at the time and place appointed and again protested against the hearing being had on Sunday, and asked that the hearing be adjourned, but his protest was unheeded, his request refused and the hearing proceeded with. All the arbitrators appear to have been present at this time. At the hearing the respondent Picker was represented by an attorney who presented his client's claim to the arbitrators. Appellant objected to the presence and participation of this attorney, and urged upon the arbitrators that if Picker was allowed to be assisted by counsel, the appellant should be afforded an opportunity to provide himself with counsel to assist in the presentation of his side of the case. This protest and request was also disregarded and the hearing proceeded, resulting in an award in favor of Picker. The hearing on Sunday, November third, was the only hearing held by the arbitrators, although their award was signed on November seventh, a week day. It was urged on behalf of the respondent that the appellant cannot be heard to object to the entry of judgment upon the award because he neither moved to vacate it under section 2374 of the Code, nor to modify or correct it under section 2375. Section 2373 of the Code provides that "At any time within one year after the award is made as prescribed in the last section any party to the submission may apply to the court, specified in the submission, for an order confirming the award, and thereupon the court must grant such an order, unless the award is vacated, modified or corrected as prescribed in the next two sections." Section 2374 provides that "In either of the following cases the court specified in the submission must make an order vacating the award, upon the application of either party to the submission: * * * Where the arbitrators were guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown * * * or of any other misbehavior by which the rights of any party have been prejudiced."
The more regular course undoubtedly to be taken by a party wishing to vacate, modify or correct an award is to make an independent motion for that relief, but we are of the opinion, and so the authorities hold, that the omission to make that motion will not deprive the party of his right to raise the objections upon the motion to confirm the report, and to review the judgment upon the same ground. ( Matter of Poole, 5 Civ. Proc. Rep. 279.) The objections which may be thus taken, however, are only those which might have been taken by an independent motion to vacate, correct or modify. In Matter of Wilkins ( 48 App. Div. 433, 438) it was said: "As to the matters which may be reviewed upon an appeal from such a judgment (based on an order confirming, modifying or correcting the award), our view is that the appellate court can consider such questions (but only such questions) as might have been raised upon a motion to vacate, modify or correct the award. Thus, if the award has been confirmed, the appellant may contend that it ought to have been vacated, modified or corrected upon some or all of the grounds set out respectively in sections 2374 and 2375 of the Code of Civil Procedure, so far as the record on appeal discloses the existence of such grounds." And this view appears to have been upheld by the Court of Appeals ( 169 N.Y. 494). We are, therefore, of the opinion that, notwithstanding the omission of the appellant to make an independent motion to vacate the award, he was entitled to present his reasons for its vacation upon the motion for its confirmation. As to the merits of the appeal we think that the award should have been vacated. A statutory arbitration, such as this was, is a judicial proceeding provided for and regulated by the Code of Civil Procedure. The arbitrators sit as a court, or at least perform a statutory judicial function. Section 6 of the Code provides that "A court shall not be opened, or transact any business on Sunday, except to receive a verdict or discharge a jury." The section also authorizes certain other judicial acts to be performed on Sunday, none of which, however, are applicable to the present case. In our opinion, to proceed with the hearing of the arbitration on Sunday, in the face of the objections and protest of one of the parties to it, was illegal, and constituted misconduct on the part of the arbitrators which vitiated their award. The cases cited to the contrary are not in point. In neither of them did any party object at the time to going on upon Sunday. In one case ( Isaacs v. Beth Hamedash Society, 1 Hilt. 469) all the parties were Hebrews, who observed their Sabbath on Saturday, and the parties and witnesses attended voluntarily without objection. In the other ( Ehrlich v. Pike, 53 Misc. Rep. 333) there were a number of meetings of the arbitrators, and there was no meeting held on Sunday at which the parties and witnesses were required to attend. It merely appeared that "the award was discussed and practically agreed upon" on that day. We also think that the arbitrators should have assented to the appellant's request for an adjournment in order to enable him to obtain counsel.
While arbitrations are frequently and very properly conducted without the presence of counsel, it constitutes misconduct for the arbitrators to permit one party to be represented and assisted by counsel, and to refuse to the other party a reasonable opportunity to avail himself of the same assistance. For these reasons we think that the judgment appealed from must be reversed, and the award vacated, with costs to the appellant.
McLAUGHLIN, LAUGHLIN and HOUGHTON, JJ., concurred; PATTERSON, P.J., concurred on last ground mentioned in opinion.
Judgment reversed and award vacated, with costs to appellant. Settle order on notice.