Opinion
December 28, 1951.
Following a loss by fire, the parties (insured and insurer) failed to agree upon the value of the premises and of the loss. The policy contains the standard appraisal clause (Insurance Law, § 168, subd. 6). An agreement was entered into thereunder, and an award was made by one appraiser and the umpire. The insured moved to confirm the award and to enter judgment thereon; the motion was granted, and from the order and judgment entered thereon the insurer appeals. Order and judgment reversed on the law, with $10 costs and disbursements, and the motion denied, without costs. The agreement entered into in accordance with the terms of the standard appraisal clause is an agreement to fix the value of the premises and the amount of loss. There is no agreement that when such amount is determined judgment is to be entered thereon. There was no agreement to arbitrate all controversies between the parties, as is authorized by article 84 of the Civil Practice Act; and there is no power in the court to enter judgment upon the appraiser's award, in the absence of consent of the parties. The amendment to section 1448 of the Civil Practice Act by chapter 288 of the Laws of 1941 empowers arbitrators to determine valuations and appraisals when authorized by agreement of the parties but does not require that the agreement in suit be treated as an agreement to arbitrate all the controversies that may exist between the parties under article 84 of the Civil Practice Act. ( Matter of Fletcher, 237 N.Y. 440; Matter of Amer. Ins. Co., 208 App. Div. 168.) Matter of Fitzgerald ( Continental Ins. Co.) ( 275 App. Div. 453. motion for leave to appeal denied 275 App. Div. 1005) does not seem to hold to the contrary; but if it does, it may not be followed. ( Syracuse Sav. Bank v. Yorkshire Ins. Co., 301 N.Y. 403, 410.) Carswell, Acting P.J., Johnston, Adel, Wenzel and MacCrate, JJ., concur.