The plaintiffs sued the defendants upon an award to recover the sum of $3,000 awarded to them by arbitrators chosen by the parties. The sum thus claimed *Page 405 was an item only in the award, as there were other matters acted upon by the arbitrators. The defendants appeared in the action and answered, alleging, among other things, that the arbitrators exceeded their jurisdiction; that the award was void upon its face, and that it was corruptly and fraudulently made and published by the procurement of the plaintiffs, and therefore void, and that it was invalid for other reasons stated; and the defendants demanded that the "award be adjudged to be void, and that the same be vacated and set aside, and that the submission be declared to be revoked, and that the complaint be dismissed, and that they have judgment accordingly." To the counter-claim thus made in the answer the plaintiffs replied, denying the facts upon which the same was based.
The action was then referred to a referee, who found and decided that the award was legal and binding upon the parties, and gave judgment for the plaintiffs for the sum claimed by them. The defendants then appealed to the General Term of the Supreme Court, and there the judgment was reversed and a new trial was ordered, on the ground that the award as to the $3,000 was invalid. The plaintiffs then appealed to this court, giving a stipulation for judgment absolute against them in case of affirmance. This court affirmed the order appealed from and ordered judgment absolute for the defendants on plaintiffs' stipulation, and the remittitur was sent down to the Supreme Court. There judgment was entered upon the remittitur by the defendants, affirming the order of the General Term and for costs, which judgment also contained this clause: "And it is considered and adjudged that the contract of submission to arbitration mentioned and described in the pleadings in this action be, and the same is adjudged to be void, and the same is hereby set aside; and it is further considered and adjudged that the award mentioned and described in the pleadings in this action be, and the same is hereby set aside and adjudged to be void and of none effect; and it is further considered and adjudged that all matters, things, proceedings *Page 406 and acts had, done or performed under and in pursuance of the said contract of submission and award be, and the same are void and of none effect." Thereafter a motion was made at Special Term of the Supreme Court on behalf of the plaintiffs to strike this clause from the judgment as unauthorized by the remittitur, and the court ordered the same to be stricken therefrom. The defendants appealed from such order to the General Term and from affirmance there to this court.
It is undisputed that the judgment entered in the court below upon a decision of this court must conform to the remittitur sent down; and the question to be determined here is whether the clause complained of was authorized by the remittitur; and whether it was or not depends upon the force to be given to plaintiffs' stipulation upon the appeal to this court under the Code: (Code of Procedure, § 11; Code of Civil Procedure, §§ 191, 194). Before the plaintiffs could appeal they were required to give the stipulation that if the order should be affirmed, judgment absolute should be rendered against them; and then it is provided that if this court in such case determines that no error was committed in granting the new trial, "it must render judgment absolute upon the right of the appellant; and after its judgment has been remitted to the court below, an assessment of damages, or any other proceeding requisite to render the judgment effectual, may be had in the latter court."
Now here the defendants had set up a counter-claim. Upon the facts alleged by them they had the right to have the award vacated and set aside. After the new trial was granted, they had the right to go to trial again and establish their counter-claim, if they could, and thus obtain the relief demanded in their answer. Of this right the plaintiffs deprived them by their appeal; but before they could do so, they were required to give the stipulation. What then is and should be the effect of the stipulation in case of affirmance? Clearly to give the defendants such a judgment as the facts alleged by them entitle them to. The judgment *Page 407 must be absolute against the appellants upon the whole matter and right in controversy in the action. If this were not so, a plaintiff in such a case as this could always deprive the defendant of his right to try his counter-claim and have it adjudicated in the action, and thus, in many cases, entirely destroy the value of a just counter-claim. Here, however, the judgment entered was somewhat too broad. There were no allegations in the pleadings showing that "the contract of submission to arbitration" was void, and there was no authority for adjudging, that "all the matters, things, proceedings and acts had, done or performed under and in pursuance of the contract of submission and award" were void. But the defendants were entitled upon the facts alleged by them to have the award adjudged void. The reversal of the judgment entered upon the report of the referee destroys the effect of that report. The adjudication that the award is invalid and of no effect invalidates all subsequent proceedings depending solely upon it. But the submission must stand for what it is worth.
The order of the General and Special Terms should, therefore, be so modified as to strike from the clause complained of in the judgment all except that portion of it which sets aside the award and adjudges it to be void and of no effect, and, as thus modified, such orders should be affirmed, without costs upon appeal to this court to either party.
If this result shall cause any harm or embarrassment to plaintiffs, it will be only another illustration of the impolitic use of the right of appeal to this court from orders granting new trials, to which attention has been called in the decisions of this court on several occasions: (Lanman v. The Lewiston R.R.Co., 18 N.Y., 493; Hitchings v. Van Brunt, 38 id., 335;Cobb v. Hatfield, 46 id., 533; Godfrey v. Moser, 66 id., 250; Lake v. Nathans, 67 id., 589.)
CHURCH, Ch. J., and DANFORTH, J., concur; FOLGER, J., concurs in result; RAPALLO and MILLER, JJ., do not vote; ANDREWS, J., absent.
Ordered accordingly. *Page 408