(dissenting). I believe that Special Term decided the motion correctly and I would affirm.
Respondent sold petitioner piece goods according to two sales agreements identical in form. Petitioner, being dissatisfied with the quality of the merchandise, demanded arbitration and this was had. The contract price of the goods was $938.64. The contract, after specifying that there shall be no recovery for certain kinds of damage, provides “ and in all events Buyer’s damages shall not exceed the difference in value on date of delivery between goods specified and goods actually delivered.” Assuming that the goods actually delivered were worthless, the maximum recoverable under the contract was $938.64, as there is no contention that the goods specified were worth more than the contract price. The arbitrator’s award, exclusive of costs, was for $3,780.51. Special Term rightfully concluded that in so finding the arbitrator disregarded the terms of the contract and thereby exceeded his powers. In awarding consequential damages the arbitrator was not making an award based on an interpretation of the contract but, in disregarding its express terms, was in effect making a new contract with obligations not assumed by the seller or contracted for by the buyer. The broad power conferred on an arbitrator is not that broad (see Matter of National Cash Register Co. [Wilson], 8 N Y 2d 377, 383). Special Term correctly determined to remand the matter to the arbitrator for a determination in accord with the express terms of the agreement.
Boteie, P. J., Eager and Timer, JJ., concur with Rabie, J.; Steuer, J., dissents in opinion.
Order entered on February 28,1967, reversed, on the law, with $50 costs and disbursements to the appellant, petitioner’s motion to vacate the arbitration award denied, and appellant’s motion to confirm the award granted.