The justice at Special Term set aside an award in an arbitration proceeding because the arbitrators failed to comply with the statute, citing Berizzi Co., Inc., v. Krausz (239 N. Y. 315), which construed the Arbitration Law (§ 8, as amd. by Laws of 1921, chap. 14) and the Civil Practice Act (§§ 1451, 1457, subd. 3).
One arbitrator made a personal investigation of the machinery svhich it was asserted by the appellant caused the damage to the doth, which was the subject of the arbitration. Neither of the Dther arbitrators examined the machinery. One refused to sign the award. It was prepared by the arbitrator who had examined the nachinery, and was signed by one other arbitrator. It was based ipon the following statements:
“ That the defects in the merchandise in controversy are not caused iy the fault of the Consolidated Piece Dye Works, * * *.”
*86“ In arriving at this decision the following matters were given due consideration and careful analysis. 1 ■— All correspondence between the parties relative to the merchandise in question. 2 — Minute inspection under the glass of several pieces of said merchandise. 3 — A thorough inspection of all machinery in the Consolidated Piece Dye Works plant, and careful perusal of several invoices. * * * The inspection of the dyer’s machinery proved conclusively to the writer that no machine in said dyer’s plant was capable of producing such holes or such damage to the face of the merchandise.”
These statements were concurred in by one of the arbitrators who made an affidavit that he never saw the machinery.
Furthermore, this same arbitrator was given employment by the party in whose favor the award was made within a few days after it was signed. It is claimed that he accepted the employment before he consented to the award. This he denies, but he says: “ It was about a week after this matter was finally submitted, that Mr. Arnold first broached to me the proposition of my becoming connected with his company. I told him that I would consider it and we discussed it for two or three days and on or about the 18th or 19th day of April, 1927, I told him that I would be glad to become associated with him, and I left my old concern about the 25th day of April, 1927, and started work for the Consolidated Piece Dye Works on that day.”
It will be noted that the arbitrator accepted the employment on the 18th or 19th day of April, 1927, and commenced work on the 25th day of April, 1927. The award signed by him is dated the 14th day of April, 1927, just four days before he says the employment was discussed and nine days before he started to work.
In addition, to this, it seems most probable that the decision of the majority of two arbitrators was based on evidence presented to one only of the three who constituted the entire board of arbitration.
In Berizzi Co., Inc., v. Krausz (supra) the court (at p. 317) said: “ It was on the strength of this personal investigation as well as upon the testimony submitted that his award was made. This the arbitrator concedes. Indeed, one gains the impression, when one reads bis affidavit, that what he did by himself and without notice, was the real basis for his decision.”
The independent and practically sole investigation of one arbitrator without notice to and in the absence of the other arbitrators, when such investigation is the basis for an award is not sufficient to sustain such an award.
We are of the opinion that the irregularities in conducting this *87arbitration and in arriving at an award not only warranted the court in setting it aside but required such a result in the interest of justice.
The order should, therefore, be affirmed.
Finch, J., concurs.
Order reversed, with ten dollars costs and disbursements, the motion denied, with ten dollars costs, and the award confirmed.