[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 391 A preliminary question involved in this appeal is as follows: When a submission to arbitration by three arbitrators has been entered into pursuant to the terms of a contract to settle all disputes thereunder by arbitration and one of the arbitrators formally withdraws and refuses to take part therein before all the proofs of the parties have been heard, may two arbitrators proceed with the hearing and make a valid award?
Civil Practice Act, section 1453, provides: "* * * All the arbitrators selected as prescribed in this article must meet together and hear all the allegations and proofs of the parties; but an award by a majority of them is valid unless the concurrence of all is expressly required in the submission."
When an arbitrator withdraws before the allegations and proofs of the parties have been heard, the filling of the vacancy by appointment of a substitute arbitrator either under the terms of the contract or under Arbitration Law (§§ 3, 4) becomes a prerequisite to further proceedings *Page 394 under the submission. (Bulson v. Lohnes, 29 N.Y. 291.) The purpose of the statute was to change the common-law rule which permitted two arbitrators to hear when the third was notified and refused to attend or was willfully absent (Crofoot v. Allen, 2 Wend. 494) and its plain mandate may not be ignored, whether an arbitrator at this stage of the proceedings withdraws for good cause or arbitrarily. (See, however, Matter of Am. Eagle FireIns. Co. v. N.J. Ins. Co., 240 N.Y. 398, decided herewith.)
A decision on this point alone might dispose of the appeal but the question of the right of a party to withdraw from a submission to arbitration is also presented and a determination of this question is essential to the complete disposition of the case. Appellant contends that it may go on with the arbitration without application to the court because a submission is irrevocable except as other contracts are revocable. (Arbitration Law, § 2.) Respondent says, you may go on with the arbitration over our withdrawal only when the court says that you are proceeding under the terms of the submission and that we are in default in refusing to arbitrate the question submitted. An analysis of the Arbitration Law becomes helpful at this stage. It makes no change in the law as it stood at the time of its enactment except to make arbitration agreements and submissions irrevocable and to provide the judicial remedy in case of a default. (Berizzi Co. v. Krausz, 239 N.Y. 315, 318, 319.)
Arbitration Law, section 2, provides:
"Validity of arbitration agreements. A provision in a written contract to settle by arbitration a controversy thereafter arising between the parties to the contract, or a submission hereafter entered into of an existing controversy to arbitration pursuant to title eight of chapter seventeen of the code of civil procedure, or article eighty-three of the civil practice act, shall be valid, enforcible *Page 395 and irrevocable, save upon such grounds as exist at law or inequity for the revocation of any contract."
But neither the agreement to arbitrate nor the submission is self-executory. A party to an arbitration agreement may break his contract. A remedy is provided in case of his default by Arbitration Law, section 3. A party aggrieved by the failure, neglect or refusal of another to perform either under a contract or a submission providing for arbitration may petition the Supreme Court for an order directing that the arbitration proceed. On such an application, the other party may put in issue (a) the making of the contract to arbitrate the questions sought to be submitted to arbitration, or (b) the submission of such questions to arbitration, or (c) the failure to comply therewith. If the making of the contract or the submission or the default be in issue the issue thus joined shall be tried. A jury trial may be demanded. It is only when it is found by the court that a written contract of arbitration has been made or a submission has been entered into covering the question sought to be included in the arbitration and that a party is in default in the performance thereof that the court will order the parties to the contract or submission to proceed with the arbitration in accordance with the terms thereof. The question arises in this case whether there was a default in the performance of the arbitration agreement or the submission. Grace Company contends that it made no contract to arbitrate and no submission to arbitrate the question of the quality of the butter on its arrival in New York. The question is at least arguable. When it withdrew Bullard Company became a party aggrieved. It could not proceed with the arbitration on the question of quality although arbitrators had been chosen and the hearing had begun.
Much reliance is placed by the appellants on the English case of Bankers Shippers Insurance Co. v. Liverpool Marine General Insurance Co., Ltd. (N.Y.L.J. Mar. *Page 396 4, 1925). The contract in question in that case was a New York contract and the English courts undertook to apply the New York Arbitration Law. The arbitration clause contained a provision that in default of either party appointing any arbitrator within one month of the other party requesting it to do so, the latter should name both arbitrators and they should elect an umpire. One party denied the authority of arbitrators thus named and declined to take any part in the arbitration. Arbitrators were named and proceeded to make an award. Action was brought thereon. Much the same question was presented as when, as in this case, the arbitrators were named and the hearing begun. May the arbitration proceed without judicial sanction? It was held by the Court of Appeal that by reason of the provisions of the contract for the appointment of a full board of arbitrators without the consent of the party in default the active party was not "aggrieved" by the conduct of the other party and might proceed without obtaining the sanction of the court. The learned court held that the constitutional right of trial by jury was waived by the agreement to refer. In reaching this conclusion it overlooked the scheme of the New York Arbitration Law which reserves to a party to an arbitration or submission the right to a judicial hearing before the arbitration shall proceed. True, the contract and the submission are irrevocable, but the terms of the contract and of the submission are open to judicial inquiry. Did the party agree to arbitrate or submit the questions sought to be arbitrated? Is he in default under the contract or the submission in refusing to arbitrate or to proceed with an arbitration once begun?
Repudiation by one party of the contract to arbitrate does not, therefore, leave the other party in position to proceed without the sanction of the court. The withdrawing party might still assert that it had made no contract to submit to arbitration the questions contained in *Page 397 the submission; that it was not in default under the contract. Mr. Justice BAILHACHE, on the trial of the English action, aptly stated the proper rule as follows: "It seems to me the section of the act treats such a party, the party who desires to go to arbitration, as a party aggrieved if the other party fails, neglects or refuses to perform his obligation under the contract. That seems to me the definition of the party aggrieved, and his grievance is the failure, neglect or refusal of another to perform under the contract. * * * Prior to the act of 1920 there was no remedy when a person refused to submit to arbitration. The act of 1920 does provide a remedy but that remedy is, if the person still desires to go to arbitration that he shall do so after first obtaining the sanction of the court to that effect."
So with a submission. Agreements to arbitrate and submissions to arbitrate are on the same footing (Arbitration Law, §§ 2, 3). Arbitrators must observe their commission and keep within their jurisdiction. If a bona fide question arises as to the proper construction of the submission agreement, a party may raise the question by withdrawing from the arbitration. If the party aggrieved then desires to go on with the arbitration he must apply to the court and the court will determine whether or not the withdrawing party was in default in refusing to proceed to arbitrate a question covered by the submission agreement.
Such construction of the Arbitration Law prevents a party or the arbitrators from proceeding to arbitrate and decide questions which the other party never agreed to submit to arbitration. Arbitrations should be encouraged but arbitration tribunals may not determine for themselves, over the objection of a party, to include within the scope of the arbitration questions which were never submitted to arbitration.
The rules of the Dried Fruit Association of New York, which governed the arbitration, were not produced to *Page 398 sustain the award in the Special Term, the Appellate Division or in this court. The Civil Practice Act controls unless the party seeking to uphold the award establishes that it is inconsistent with the terms of the submission.
The award herein and the judgment entered thereon were properly vacated under Civil Practice Act, section 1457.
The order should be affirmed, with costs.
HISCOCK, Ch. J., McLAUGHLIN, CRANE, ANDREWS and LEHMAN, JJ., concur; CARDOZO, J., not voting.
Order affirmed.