Schettino, Hall and Gaulkin. The opinion of the court was delivered by Hall, J.A.D.
This is an appeal by defendant from a judgment of the Law Division in favor of plaintiff entered on the report of an arbitrator. An order of the trial court, consented to by the parties, directed "that this matter be referred to the Honorable Howard Eastwood [a retired judge of this Court], as an arbitrator to determine the issues, both factual and legal, involved between the plaintiff and defendant, and to report his findings as soon as practical to this Court so that a judgment may be entered thereon."
Plaintiff, a real estate salesman, instituted the action against his employer, a broker, for commissions allegedly due him under a written employment contract, following
termination of the relationship. Defendants' answer admitted all of the allegations of the plaintiff's complaint except the allegation that "Defendants still owe plaintiff for commissions the balance of $19,037.61," which was denied. No affirmative defenses were asserted.
We note that the complaint was filed September 20, 1956, and the answer October 22, 1956. The case was not pretried prior to the entry of the order referred to on November 12, 1957. The arbitrator filed his report April 23, 1958 after taking testimony which consumed one day. The report fully dealt with and determined the factual questions and legal issues agreed upon before him by the parties as all those involved.
On June 17, 1958 the trial judge directed the entry of the judgment under appeal by an order reading as follows:
"This action came on for trial before the Court sitting without a jury, and the Court did refer the matter to the Honorable Howard Eastwood, as an arbitrator, to determine the issues, both factual and legal, and to report his findings to the Court so that a judgment might be entered thereon, and the said Honorable Howard Eastwood did make his report to this Court, and the Court did receive and adopt the said report as and for its findings in this matter on issues, both factual and legal, upon which judgment should be entered in favor of the Plaintiff, Edwin L. Carpenter:
It is on this 17th day of June, 1958, ordered that judgment be entered in favor of the Plaintiff and against the Defendants in the sum of $15,775.00, of which sum the Defendant shall pay the Plaintiff, $5,342.50 forthwith, representing commissions already received, and the balance of $10,432.50 as and when Defendants receive payment of the commissions as set forth in said report; together with costs to be taxed against the Defendants and in favor of the Plaintiff; that the execution under this judgment shall remain within the jurisdiction of this Court and no execution hereunder shall be issued without the consent of this Court; that an allowance of $109.00 for Joseph J. DePuglio for services as reporter, and a fee of $180.00 for the Honorable Howard Eastwood, for services as arbitrator be granted, the cost of which allowance and fee should be shared equally between the Plaintiff and Defendants."
The record does not show what steps, if any, the defendants took to attack the report below, either before the arbitrator or before the trial judge, although there is a reference in the appellants' reply brief that briefs were filed with the
trial judge before the judgment appealed from was entered. We were advised at the argument that appellants urged at that time the same points made in their briefs here. All relate to the merits and are put to us as if this were an appeal from a judgment following a non-jury trial. Respondent's brief treats the questions in the same fashion.
Prior to oral argument, this court directed the attention of counsel to two questions not raised in the appeal -- first, the authority of the trial judge to enter the order of November 12 and the resulting judgment, and second, the extent of the permissible review of the award of the ...