Appeal from Trial Term.
In the matter of the arbitration of David V. Picker and Frank Marcus. From an order confirming the award, and from the judgment granted thereon, Frank Marcus appeals. Reversed, and award vacated.
[114 N.Y.S. 290] Alfred B. Jaworower, for appellant.
Bernhard Ginzburg, for respondent.
Argued before PATTERSON, P. J., and McLAUGHLIN, LAUGHLIN, HOUGHTON, and SCOTT, JJ.
[114 N.Y.S. 291] SCOTT, J.
On October 27, 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 Asinof, 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 3d, was the only hearing held by the arbitrators, although their award was signed on November 7th, 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, Code Civ. Proc., nor [114 N.Y.S. 292] to modify or correct it under section 2375. Section 2373, Code Civ. Proc., 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. In re Poole (Genl. T. First Dept.) 5 Civ. Proc. R. 279.The objections which may be thus taken, however, are only those which might ...