Goodsell v. Phillips , 49 Barb. 353 ( 1867 )

By the Court,^*—Balcom, J.

The plaintiff was not entitled to enter a judgment against the defendant upon the award unless the statute authorised him to do it. A party can confess a judgment, which may be entered without action, provided he complies with the provisions of the code of procedure on the subject. (See Code, §§ 382 to 384.) A party cannot enter a judgment upon an award in his favor, unless the submission, pursuant to which it was made, be in conformity with the statute respecting arbitrations. When parties, by an instrument in writing, submit matters in dispute to the decision of arbitrators, they “ may, in such submission, agree that a judgment of any court of law and of record, to be designated in such instrument, shall be rendered upon the award made pursuant to such submission.” (3 Bev. Slat., 5 Ed., 855, § 1). But to entitle any award to be enforced by the entry of judgment thereon pursuant to the statutes on the subject, it must be in writing, subscribed by the arbitrators making the same, and attested by a subscribing witness. (Id., 856, § 8). And no judgment can be entered on such award, under the statute, until the submission, pursuant to which it was made, be proved “ by the affidavit of a subscribing witness thereto.” (Id., 856, § 9). The statute is, “ upon such submission being proved by the affidavit of a subscribing witness thereto, and upon the award made in pursuance thereof being proved in like manner, or by the affidavit of the arbitrators, within one year after the making of the same, the court designated in such submission shall, by rule in open court, confirm such award, unless the same be vacated or modified, or a decision thereon be postponed, as herein provided.” (Id., § 9). “Upon such award being confirmed or modified, the court shall render judgment in favor of the party to whom any sum of money or damages shall have been awarded that he recover the same,” &c. (Id., 857, § 14). The submission in this case was not proved by the affidavit of a subscribing witness thereto; for there was no subscribing witness to it. The plaintiff could not comply with the statute respecting the proof of the submission, and therefore did not make a case that authorized the court to give him a judgment upon the award. The rule is, that the requirements of the statute must be strictly complied with to entitle a party to enter a judgment on an award without action. (Hollenback v. Fleming, 6 Hill, 303.)

But it is claimed by the plaintiff’s counsel, that the defendant waived proof of the submission by the affidavit of a subscribing witness, by taking part in the proceedings before the two arbitrators named in the submission, knowing there was no subscribing witness to it; and by not moving to vacate, modify or correct the award as he might have done. This position is untenable; for an award might have been made, under the submission, that could have been enforced by action: and the defendant may have omitted to make such a motion under the belief that the award was valid, though no judgment could be recovered on it except by action. If he had had notice of the application for judgment upon the award, and had failed to object to a judgment being rendered on it against him, on the ground that there was no subscribing witness to the submission, &c., it is probable he would have waived that objection, so that a judgment against him could not have been reversed. (See Hollenback v. Fleming, supra) But he did not have any notice of the application to the court for judgment "on the award, and therefore did not waive the objection that the submission was not proved by the affidavit of a subscribing witness thereto by not opposing such application.

The plaintiff’s counsel relies on the decisions in 12 Wendell, 212, and in Hughes v. Bywater (4 Hill, 551), as sustaining the regularity of the judgment in this case. But those decisions were made when judgments could be entered on warrants of attorney without special motion, and the stipulations in the submissions in those cases, were held to be the same thing as if they had expressly authorized the entry of judgment by attorney. Now, judgments cannot be entered on warrants of attorney; but must be entered in the manner prescribed by the Code, or by some other statute, unless entered in actions which have been duly commenced.

Our conclusion is, that the judgment in this case was irregularly entered, for the reason that the submission was not proved in the manner prescribed by statute; and that the defendant could move to have it set aside for irregularity, because he did not have any notice of the plaintiff’s application for judgment on the award. It is, therefore, unnecessary to decide the other questions, raised by the defendant’s counsel, as to the invalidity of the award, because the appointment of the third arbitrator was not in writing, and because the award was made after the defendant’s notice of revocation of the powers of the arbitrators, without giving him an opportunity to be heard before such third arbitrator. And we will not determine whether the defendant should have moved to vacate the award on those grounds, or whether he could move to set aside the judgment on those grounds, after omitting to move to vacate the award. It is sufficient for us to say the judgment was properly set aside on the ground that the submission was not proved in the manner prescribed by statute. The order setting aside the judgment and execution issued thereon should be affirmed with costs.

Order affirmed

* Present—Mason, Balcom and Boaitoman, J.J.