(dissenting in part). The labor relations contract between the appellant Employer and the respondent Union provides for arbitration in the event of any difference between them. A dispute has arisen over the right of the Employer to *218discharge John Cody who has been employed as a chauffeur.
On or about September 26, 1940, in the course of his employment Cody suffered a serious injury to his left arm. The Workmen’s Compensation Board granted Cody an award in the total sum of $6,825 upon the basis of an eighty-seven and one half per cent loss of use of his left arm. Upon receipt of notice of the Compensation Board’s findings and decision, the Employer refused to permit Cody to operate any of its trucks. The Union contended that Cody was actually in such physical condition that as a chauffeur he could operate the trucks of the Employer. An arbitration proceeding was initiated. There was no formal submission agreement. There was, however, an exchange of letters between the attorneys for the respective parties. In reply to a letter from the attorneys for the Union and Cody, the attorney for the Employer wrote as follows: “ I have your letter of December 10th, 1941. I am ready to have the matter referred to Mr. Sheridan to decide the question which he has not decided, that is, the question whether Daniels & Kennedy may dismiss Mr. Cody because he is unable to drive a heavy-duty truck.”
In his award, the arbitrator states the question submitted to him as follows: “ The controversy concerns itself with the competency of union member John Cody to drive a heavy-duty truck, and the question of the company’s obligation, under its contract with the union, to so employ him.”
The arbitrator in his award stated that, after taking into consideration the arguments of the parties together with the evidence and testimony presented, he was constrained to rule as follows: “ A man who has been certified by competent medical authority to have suffered an injury resulting in a permanent loss of 87%% use of one arm is not a competent man to entrust on the public highway with a heavy-duty truck. The fact that the injury suffered by Chauffeur Cody in this case has affected the grasping power of his left hand as well as the entire power of his left arm bears heavily on this conclusion. No union, despite the closed shop nature of its agreements, has the right to impose on an employer a chauffeur who has not the normal use of both arms and both hands.” In addition, the arbitrator said: ‘ ‘ Further, so long as Cody continues to accept the benefits of an award that is predicated on a medical finding of 87%% disability of the left arm, it ill behooves the union, if indeed it does not estop it, from claiming recognition for Cody as a normally competent driver. * * *.
*219“ It is not the question of the company’s legal liability to possible future suitors with which the Arbitrator is concerned in this case. He is concerned with the danger to the public at large involved in permitting a partially • incapacitated chauffeur to operate the controls, of a heavy-duty truck on the congested streets of Hew York. He is concerned with the claim of the union, because of its contract with this employer, to insist that such a man be continued in employment as a chauffeur. In the Arbitrator’s opinion such an imposition is unwarranted and unjustified, not only to the employer, but to the public safety.” Finally, the award states: “I therefore rule that Daniels & Kennedy, Inc., under its contract with the union, is hot required to employ John Cody as a chauffeur on its equipment. However, in deference to this man’s seniority and term of service with the company, I rule that Daniels & Kennedy, Inc., shall continue John'Cody in its employ as a helper on its trucks or some other appropriate capacity, compatible with his physical condition, whereby he might earn at least a union helper’s rate of pay.”
The Union now argues that the issue before the arbitrator was the Employer’s demand for leave to dismiss Cody, not merely the abstract question of Cody’s ability to drive a truck.
Arbitrators are without power to determine questions not submitted to them. (Matter of Bullard v. Grace Co., 240 N. Y. 388, 397.)
As we read the record, the question before the arbitrator was, as stated in the award, to-wit, the obligation of the Employer to employ Cody as a truck driver. This did not embrace the right of Cody to be continued in the employ of the Employer in any capacity compatible with his physical condition.
The provisions of section 1462-a, subdivision 2, Civil Practice Act, are applicable. The award should be modified by striking out so much thereof as directs that Cody shall continue in the employ of the Employer as a helper on its trucks or in some other capacity compatible with his physical condition.
The order and judgment should be modified accordingly and as so modified, affirmed.
Untermyer, Dore and Callahan, JJ., concur with Cohn, J.; Martin, P. J., dissents in part, with opinion.
Judgment and order affirmed, with costs.