In re Arbitration Proceeding between Bond & Shubert , 36 N.Y.S.2d 147 ( 1942 )

Bliss, J.

(dissenting). The written agreement of arbitration signed by both of these parties provided that the award should contain a provision that the payment of any sums thereunder to Frederica Bond should immediately cease upon the event of her marriage or death except that if she should marry within ten years from the date thereof the payments should continue for three years after such marriage and then cease forever. This provision was an integral and vital part of the agreement betwe.en these parties. Appellant’s statement that she did not know of this provision is unbelievable and obviously is now made for the purpose of avoiding her written obligation. That the award should have contained this provision is not questioned. There was no power in the arbitrator to make any award not in accordance with the agreement. The omission of this vital provision from the award was a serious error and gives rise to a great injustice in compelling the respondent to continue to support the appellant after she has married and is now living with and being supported by another. The only question in this case is as to the power of the court to now make the award, conform to the agreement of the parties. That such power is exercised in matrimonial actions long after the granting of the original decree is sustained by many authorities. In Williams v. Williams (287 N. Y. 799) a judgment of divorce originally granted in 1914 was amended in 1942 so as to include a provision for alimony and support which had been unintentionally and inadvertently omitted from the original judgment. The motion to amend the instant award was made as soon as the respondent discovered the omission. The appellant’s claim that respondent is now estopped from obtaining the relief which he now seeks is without merit for respondent did nothing to induce appellant to change her position. She now has a husband who is legally liable for her support.

The order of the Special Term should be affirmed.

Order appealed from, and judgment as modified, reversed on the law and facts, with costs.

The order entered upon this decision shall contain a reference to the opinion to supply any facts required by section 607 of the Civil Practice Act, as added by chapter 297 of the Laws of 1942.