It clearly appears from the papers used on the motion below that the controversy between the parties arose out of a building contract under which the respondent claimed the unpaid balance of the contract pricé, as well as a sum for “ overtime ” work, while the appellant claimed that the respondent failed to perform the contract according to its terms, whereby he asserted a right of counterclaim or set off against any amount found to, be due to respondent.
It is apparent, and not questioned, that the amount due to respondent under these circumstances was unliquidated, and it is now settled that the respondent was not entitled to recover interest on the balance that might be found due him, after the deduction of the damages for defective work or inferior materials. (Excelsior Terra Cotta Co. v. Harde, 181 N. Y. 11.) It must be conceded, therefore, that the arbitrator erred in awarding interest on the net amount which he found to be due to the respondent. It is the unquestioned and well-settled law of this State that the awards of arbitrators are, if possible, to be upheld, and that all reasonable intendments and presumptions are to be indulged in their support, and they will not generally be overruled for errors of law or fact on the part of the arbitrator. But this rule is subject to the qualification that an award may be corrected, or, if necessary, set aside for palpable errors of fact, such as a miscalculation of figures, or for any error of law where the error is patent upon the face of the award, and it appears that the arbitrator intended to decide according to the law, but did not, the reason being that, in making such correction the court merely- carries into effect the intention of the arbitrator. And it is not necessary that it should appear by express statement in the award that the arbitrator Intended to decide according to law, in order to give the court power to review. It is sufficient if this be shown by clear and necessary inference. (Fudickar *483v. Guardian Mut. Life Ins. Co., 62 N. Y. 392.) In the present case the arbitrator has struck a balance between the parties, and has found the sum due from appellant to respondent, and has then added interest to that sum. It is clear that he awarded this interest because he believed that the respondent was entitled to it as matter of law, and his own. affidavit is to that effect.
I think that it is within the power of the court to correct the award. Section 2375 of the Code of ¿Civil Procedure gives very wide power in that respect.' It authorizes the court to modify or correct the award as follows : “ Where the arbitrators have awarded upon a matter not submitted to them, not affecting the merits of the decision upon the matters submitted.” The submission signed by the parties committed to the decision of the arbitrator “ All and all manner of actions, cause and causes of actions, suits, controversies, claims and demands whatsoever, now pending and existing by and between them as aforesaid.”
The preamble states the nature of the controversies. It recites the execution of the building contract; that controversies had arisen between the parties as to wha.t amount, if any, was due to respondent from appellant on account of the work performed and materials furnished, whether under contract or otherwise, and also what amount, if any, was due to respondent from appellant with regard to the various claims made on behalf of the respondent against the appellant arising out of said contract, or in. connection with the alterations on said building; and also as to iyhat amount,' if any, was due to the appellant from the respondent with" regard to the various claims made on behalf of the appellant against the respondent arising out of said contract, or in connection- with said alterations. "
It will be seen from a careful reading of the submission that nothing was-committed to the determination of the arbitrator except the amounts then due from each to the other of the parties to the submission. Nothing whatever is said about interest, and it seems to be quite clear that whether or not interest should be alloxved upon the balance found due from either to the other was left as a matter to be determined by the law, and was not included in the submission as a matter to be arbitrated. It seems to me to be equally clear that the arbitrator, having found the balance, intended *484to include the interest in his award only because he believed that, the law awarded it under the circumstances. By striking the interest/out, the arbitrator’s award upon the matters strictly submitted to him will not be disturbed, and the question of interest will, be disposed of according to law, as it was his evident intention that it should be. In this way the true intention of the arbitrator will be carried into effect. - '
’Fortunately the arbitrator lias so framed his awards stating separately the balance found due and the interest, that no difficulty will be experienced in making the proper correction.
' The judgment appealed from should, therefore, be modified by striking therefrom the award of $5,900.33 interest, and as modified affirmed, with costs to appellant.
Lambert, J., concurred.
Judgment affirmed, with costs. Order filed.