It is claimed here that the award was properly vacated because of the misconduct of the arbitrator Flower, who made an independent, original investigation of the plant, machinery and invoices of the Consolidated Company without the consent of all of the arbitrators and not in their presence or in the presence of all of the parties, which investigation influenced and controlled his judgment and was a determining factor in his decision. In addition, the arbitrator Patterson, it is asserted, was manifestly partial to the Consolidated Company, and the charge is made that, while the arbitration was pending, he was negotiating for employment by the Consolidated Company and entered its employ a few days after the award was made. The charges are not supported by any convincing proof except that of subsequent employment.
As stated in the affidavit of Alexander Patterson, one' of the arbitrators, “ the matter was fully heard and discussed, the entire afternoon being consumed. The pieces of merchandise were submitted and carefully examined by all of us. It was agreed amongst us that the arbitrators should meet again and discuss the matter.” One of the experts stated that the holes in the goods complained of by the Robins Silk Company could have been caused by some rollers in the plant of the Consolidated Company. One of the arbitrators stated that he desired to make an inspection of the plant of the Consolidated Company, and asked that the others go with him. This inspection of the plant, it is asserted, was agreeable to every one concerned. Although this is controverted, I think it is established. Mr. Flower, the arbitrator, visited the plant and made an inspection. He thereafter reported the facts to the other arbitrators at later meetings. Thereafter they spent approximately two hours going oyer the matter, and the arbitrators
We think it is the proper rule that where the proof is substantial that the arbitrators acted in good faith and that the independent inspection is permitted by consent of all or with knowledge without protest, and such inspection refers to facts of such a nature as to preclude reasonable contest, the award of the arbitrators is binding.
This case comes within the recognized exceptions stated in Berizzi Co., Inc., v. Krausz (239 N. Y. 315). The investigation was by mutual consent and with knowledge. The consent was express. Even tacit consent would suffice. The investigation was, to quote the language of the court in the Berizzi case, “ * * * directed toward * * * facts of such a nature as to preclude reasonable contest. This may include views or measurements or the ascertainment of physical conditions, notorious and permanent.”
The independent investigator attempted, in the cited case, to determine value by learning the price at which various individuals were selling and buying the particular article in dispute. The arbitrator here examined the rollers in the mill, which are a fixed and permanent part of the plant — a “ physical condition, notorious and permanent.”
The arbitral decision was fair.
The order should be reversed, with ten dollars costs and disbursements, and the motion to vacate the award should be denied, with ten dollars costs, and the award confirmed.
Dowling, P. J., and Proskauer, J., concur, Finch and Martin, JJ., dissent.