The award sued upon was the result of a submission to arbitration by the parties to this action, one of the conditions of the submission being that the award should be in writing, subscribed by the arbitrators and ready to be delivered to the parties on or before the 1st day of June, 1867. As appears by the facts found it was so made and subscribed by the arbitrators on the 31st day of May, 1867, but instead of a counterpart thereof signed by them a copy was made which the plaintiff accepted, waiving his right to the original, and leaving it to be delivered to the defendant, who never demanded it.
The cases of Pratt v. Hackett (6 J.R., 14); Buck v.Wadsworth (1 Hill, 321, 322) are authorities for holding that a compliance with the submission required not only that the award should be in writing and subscribed by the arbitrators, but that a counterpart thereof should also be made and subscribed by them, unless, as COWEN, J., said, in Buck v. Wadsworth, *Page 171 "the party shall expressly discharge them from that necessity." In Sillick v. Addams (15 J.R., 197) no counterpart was made; the parties having each accepted a sworn copy, without objection, were held to have dispensed with the delivery of the award itself. The object of requiring a counterpart was for the benefit of the respective parties, that each might have like evidence of what the award was; and as a waiver by either could not prejudice the other, the plaintiff had the right, for himself, to waive his right to an original; and as his waiver could not, by any possibility, work an injury to the defendant, for whom the original was left in readiness for delivery, he is without any just ground of objection to the award, the same being in writing and subscribed by the arbitrators, ready for delivery to him.
It was urged on the argument that there was no evidence whatever to justify the finding alluded to, and hence that the finding itself was an error of law; if so, an exception to it was indispensable to the right to be heard upon that point upon an appeal from the Supreme Court. (Brush v. Lee, 36 N.Y., 52,53.)
The judgment appealed from must be affirmed.
All concur.
Judgment affirmed.