Farrington vs. Hamblin, 12 Wend. 212

By the Court, Savage, Ch. J. This clearly was not a reference under the statute; no rule was entered referring the cause and appointing referees. The arbitrators were not officers of the court, but the judges of the parties’ own choosing. The court had no control over them, 1 Johns. 315, 492; 9 Cowen, 136; and but for the stipulation to enter judgment, the court would not entertain any motion in relation to the subject. But it may be said here as was said in Yates v. Russell, 17 Johns.

R. 465 : the question is whether either party can be permitted to allege for error the entry of a rule for judgment, when that judgment is in pursuance of his own consent in writing, and under his seal. It was there held that the parties were concluded by their agreement, and should not be permitted to allege that the reference and judgmentwere not warranted by law. The only difference between that case and this is, that there a rule was entered referring the cause, and here there was not: the submission authorized only the entry of the judgment upon the award.

In that case, however, as in this, all depended upon the agreement of the parties : that case was not referrible ; the whole proceeding, therefore, would have been irregular but for the maxim consensus tollit errorem. In this case there might have been a long account, but there was no rule to refer; and the rule for judgment is sustained by the same maxim which sustained the rules in that case. I am therefore of opinion that the judgment, being founded upon the consent of the defendant appearing upon the record, is valid.

It further appears, that the plaintiff has taxed his costs and caused a judgment roll, including his costs, to be signed and filed. In this the plaintiff’s attorney has proceeded erroneously. He states in his own affidavit that it was the inten-tjon Qf partjes that the award of the arbitrators should have the effect of the verdict of the jury. Suppose he had recovered a verdict of #37 at the circuit, he surely would not . r- - have entered his judgment for costs as matter of course. 1 he verdict being less than #50, prima facie the defendant would be entitled to costs, 2 R.

S. 614, § 8, 9, 16; and the plaintiff could recover costs only by presenting to this court, on a special motion, the facts entitling him to costs. Those facts are, that his claim, as established at the trial, exceeded #200, and the same was reduced by set-offs; or that the debts, demands and accounts of both parties, established on the trial, exceeded #400.

I am of opinion that the submission brings the question of costs fairly before the court; it is, “ That judgment shall be rendered in the supreme court, upon the final award, arbitrament and determination of the arbitrators, or any two of them, with costs, according to the rules and practice of the court!’ The plaintiff should have costs, if he would have been entitled to them upon a verdict for #37 ; but if not, then the defendant is entitled to full costs. The arbitrators have stated that the amount of the plaintiff's demand, as proved before them, amounted to the sum of #245,23.

Upon this, it is proper to remark, that the amount proved was no part of the award, nor was it the duty of the arbitrators to set it forth; they were to ascertain the amount due, and it was no more proper for them than it would be for a jury to state the evidence before them. The impropriety of doing so appeal’s from the fact, that where two of them go into details, they falsify the assertion in the award, and show that though the plaintiff’s demand, as proved, may have amounted to #245, yet the plaintiff’s claim, “established at the trial,” amounted to only #197.

It appears, therefore, that the defendant is entitled to costs, and his motion must be granted so far as to strike out the award of costs in favor of the plaintiff and to insert an award of costs in favor of the defendant, when they shall have been taxed. The residue of the motion is denied, without costs to either party.