In re the Arbitration between Deering Milliken & Co. & Boepple Sportswear Mills, Inc.

Per Curiam.

The question raised on a motion to vacate an arbitrators’ award was whether the arbitrators, in their award on respondent’s counterclaim, exceeded their powers. The contract between the parties limited the seller’s liability for defective yarn to the difference in value between the yarn specified and the yarn actually delivered, and provided that “In no event shall Buyer be entitled to claim consequential damages It is the petitioner seller’s claim that the award made in favor of respondent buyer included consequential damages; therefore the arbitrators exceeded their authority under the contract.

The award does not reveal how the amount was calculated, but it is not apparent either from the award or the record before us that the arbitrators departed from the fixed formula for determining damages or that they allowed consequential damages. Special Term found it “ possible ” that the arbitrators included in their assessment of the buyer’s damages items expressly eliminated, and granted petitioner’s motion to the extent of remitting the matter to the arbitrators to reflect in their award the extent of respondent’s damage, if any, within the limitation of the contract, to wit, on the basis of the difference in value between the yarn specified and the yarn actually delivered. The possibility of an excessive award seems to rest on the fact that the arbitrators may have received evidence irrelevant to the proper measure of damages and indicative of consequential damages. The proceedings before the arbitrators are not contained in the record before us.

We cannot agree with Special Term that the mere possibility of an award being in excess of arbitrators’ powers, at least as far as that possibility is presented in this case, is warrant for vacating an award and remitting it for redetermination or correction. The court certainly cannot ordinarily review the admission of evidence by arbitrators and cannot assume from the admission of irrelevant evidence that the award made was responsive to that evidence rather than to the standard of judgment provided by the contract. The burden was upon petitioner to show that in fact the award made was in excess of the arbitrators’ authority. Petitioner has failed to sustain that burden.

The order appealed from should be reversed, the motion to vacate the award should be denied, and the cross motion to confirm the award should be granted, with costs to appellant.