Jones v. Cuyler, 16 Barb. 576

By the Court, T. R. Strong, J. Prior to 1845, the provisions of the statute for referring causes were confined to actions on contract. They allowed a reference to three impartial and competent persons, and, with the consent of the parties, to a sole referee. (2 R. S. 383, § 89. Laws 1836, p. 767 § 1, 2.) If an action not referrible under that statute, was referred by consenf of parties it was thereby discontinued, and the reference was a submission to arbitration.

The court had no control over the report in such a case, but judgment might be entered upon it, if the agreement of reference contained a provision to that effect; otherwise not, and the report could be enforced only as an award. (Green v. Patchin, 13 Wend. 293, and cases cited. Silmser v. Redfield, 19 Id. 21. Dederick's Adm'rs v. Richley, Id. 108. Beardsley v. Dygert, 3 Denio, 380.) In 1845, a statute was passed, the first

section of which is in these words: “ Whenever any personal action, other than those now by law authorized to be referred, shall be at issue in any court of record, such court may, by the consent of all parties, order the same to be referred to such referee or referees as shall be agreed on by the parties.” By § 2, “ such referees shall possess the powers, and be subject to the provisions,” of the revised statutes relative to referring causes. Under those sections the former action was referrible.

It is insisted by the plaintiff’s counsel, that under the first section, inasmuch as it is silent in regard to the number of referees, more than three might act by agreement of parties, and consequently that the reference in question was valid as a statute reference, and was not an arbitration. I cannot assent to this view- It could not, I think, have been intended by the legislature to make any distinction, as to the number of referees, between the class of actions embraced in that section, and actions which were before referrible.

The section, although not in terms an amendment of the revised statutes in respect to the reference of causes, is to be so regarded and treated in giving it a construction. It is part of an entire statutory system, and the other parts must be taken into consideration, in connection with it, in its

interpretation. The code, which authorizes a reference in all actions, by § 273 limits the number of referees to three, but it was not applicable to the former action, which was commenced before the code went into operation. In my opinion, the selection of four persons as referees took the case out of the statute, and converted it into an arbitration. The award does not, in words; direct- the- payment by the' defendant to the plaintiff of the amount to which the damages were assessed, hut I think such a direction is fairly to be implied.

The action was brought to recover the damages, and that was submitted; facts enough are set forth in the award to show a legal liability of the defendant to. pay the damages, and there could be no object in making the assessment but to determine the sum to be paid by him. [Monroe General Term, December 5, 1853. Welles, Johnson and T. R. Strong, Justices.] The objection that the award does not decide that the acts done by the defendant were without right and wrongful, cannot prevail, for the reason that it does not appear there was any controversy before the arbitrators on that subject. (Jackson v.

Ambler, 14 John. 96. Ott v. Schroeppel, 1 Selden, 482.) There is no force in the position, that the award is not-mutual or final. The sum awarded was allowed as a compensation for the damages, and in satisfaction of them. This clearly appears, and it was not necessary it should be formally expressed. The judgment must be affirmed.