On appeal from the Superior Court, Law Division, Morris County.
For affirmance -- Justices Case, Oliphant, Wachenfeld, Burling and Ackerson. For reversal -- Chief Justice Vanderbilt and Justice Heher. The opinion of the court was delivered by Case, J.
The appeal was to the Appellate Division of the Superior Court and comes to us on our own motion. It turns chiefly upon matters arising out of an agreement to arbitrate.
Plaintiff and defendant entered into a contract which contained this clause:
"It is hereby agreed that any matter arising hereunder, which cannot be mutually agreed to between the Contractor and Owner shall be settled by reference to two indifferent persons, one to be named by each of the parties, with power for such persons to appoint an umpire in case of their disagreement; and the award of said two persons or umpire shall be final and conclusive."
Differences arose between the parties, whereupon defendant demanded that the dispute be arbitrated pursuant to the terms of the contract, and in October, 1948, the parties each named an arbitrator. The two arbitrators, without awaiting a disagreement, proceeded to appoint an umpire. There was a long, unexplained interval, but a joint and unanimous report of the arbitrators and the umpire, dated November 18, 1949, determined that the plaintiff was indebted to the defendant in the sum of $2,181.90. Meanwhile, on November 9, 1949, more than a year after the submission to arbitration, plaintiff had filed his complaint in the Superior Court, Essex County, in the present suit, claiming damages for an alleged breach of the contract. The defendant, on December 2, 1949, gave notice that on December 9 he would move to stay the law suit, pending the confirmation of the arbitrators' award, and would also move for a transfer of venue. On December 14, 1949, an order was made transferring the cause to the Superior Court in Morris County and directing that the trial of the proceeding be stayed pending the confirmation of the arbitrators' award and that the defendant file his answer, but that his filing of the answer would not waive his right to proceed with the confirmation of the arbitration award. Defendant then, December 23, 1949, filed his answer in the suit setting up as a separate defense that the arbitration agreement was a bar to the plaintiff's action. At the same time defendant filed a counterclaim (not conditioned upon the arbitration or an award therein) containing three counts, wherein he demanded judgment for $2,500, $512 and $200 respectively. Plaintiff's reply to the defendant's answer and answer to the defendant's counterclaim were filed on January 9, 1950. On March 3, 1950, the parties were
heard on motions by the defendant to confirm and by the plaintiff to vacate the award of the arbitrators, and on April 13, 1950, the court made an order vacating the award and also vacating the stay in the law suit. The pretrial conference was on June 27, 1950. The cause came on for trial in October, 1950, and resulted in a jury verdict for $6,000 in favor of plaintiff. On defendant's motion for a new trial the court found that the verdict was excessive and should be set aside unless reduced to the sum of $3,000. Plaintiff made written consent to that reduction. On November 16, 1950, judgment was entered for $3,000.
The present appeal bears date November 29, 1950, was filed December 1, 1950, and is, in express language, from the final judgment of $3,000 entered November 16, 1950.
Appellant's first point is that the trial court erred in setting aside the award. The order vacating that award was made more than seven months before the appeal, which places the appeal out of time as to it unless, as appellant contends, the order does not operate as a judgment and is to be considered as an inconclusive step in the law action and consequently within the reach of the appeal from the judgment in that action.
The arbitration proceedings were wholly aside from the law action. They were instituted in October of 1948. The action at law was begun more than a year later. The arbitration arose out of contract, R.S. 2:40-10, et seq., and was instituted by the parties without court order. The cross-motions made to confirm and to vacate the award were in accordance with the statute, R.S. 2:40-18 and -19; and, likewise under the statute, present appellant could have appealed from the order vacating as from an order or judgment in an action, R.S. 2:40-25; Deakman v. The Odd Fellows Hall Assn., 110 N.J.L. 304 (E. & A. 1932), Rahway v. Cleary, 10 N.J. Misc. 545 (Sup. Ct. 1932), affirmed 109 N.J.L. ...