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Tave Construction Co. v. Wiesenfeld

Decided: March 4, 1964.

TAVE CONSTRUCTION CO., INC. A NEW JERSEY CORPORATION, PLAINTIFF,
v.
BENJAMIN WIESENFELD, BESS WIESENFELD, FRANKLYN B. SPIEZLE, AND WINDSOR CONSTRUCTION CO., A CORPORATION OF NEW JERSEY, DEFENDANTS



Leonard, J.s.c.

Leonard

This matter is before the court on plaintiff's motion to confirm the award of arbitrators and upon defendants' motion to vacate said award. The depositions of said arbitrators were taken pursuant to an order of this court, made on the return date of these motions. The court has read the transcript thereof and the transcript of the original arbitration proceeding, together with all exhibits placed in evidence therein. All have been considered in reaching the following conclusion.

Defendants first argue that N.J.S. 2A:24-5 has been violated because more than one arbitrator heard the dispute. However, N.J.S. 2A:24-5 provides that "the arbitration shall be by a single arbitrator unless otherwise provided." The contract does otherwise provide. Article 40 thereof incorporates

by reference the standard form of the American Institute of Architects, which permits the American Arbitration Association to act within their rules. Section 16 of the commercial arbitration rules of the American Arbitration Association states:

"If the arbitration agreement does not specify the number of arbitrators, the dispute shall be heard by one arbitrator, unless the Administrator in its discretion specifically directs that a greater number of arbitrators be appointed." (Emphasis supplied)

At the outset of the arbitration proceedings herein, the tribunal clerk clearly indicated that due to the large amount in controversy, the administrator had exercised his discretion and directed that three arbitrators be appointed. Crystal Ice and Cold Storage Co. v. Elmer , 82 N.J. Eq. 486 (Ch. Div. 1913), relied upon by defendants; discusses failure to comply with statutory requirements although it does not deal with the number of arbitrators. That decision is inapplicable to the facts sub judice because, as above noted, the incorporation of the American Arbitration Association rules into the contract obviated use of the statutory provision as to number of arbitrators which is employed only if the contract is silent.

Defendants next contend that the award should be vacated because Martin Tave, a party to the agreement, was not included in the award.

Royal Indem. Co. v. Hartford Acc. & Indem. Co. , 58 N.J. Super. 75 (App. Div. 1959), relied upon by defendants, is not in point as it does not involve arbitration. Moreover, the court stresses the importance of whether or not there is unfairness in the failure to include a particular person as a party (58 N.J. Super. , at p. 79). As hereinafter demonstrated, such unfairness is not present here.

In Carhal Factors, Inc. v. Salkind , 5 N.J. 485 (1950), relied on by defendants, an arbitration award was declared void because plaintiff did not distinguish between defendants in their individual and partnership capacities as against their corporate capacity. The court there said:

"The arbitrators made the mistake, apparent upon the face of the award, of treating the defendants as a single defendant to be charged with the same debts. * * * An award which does not clearly fix the identity of a party defendant and the capacity in which he is charged is void for uncertainty." (5 N.J. , at p. 491)

Leslie v. Leslie , 50 N.J. Eq. 103 (Ch. Div. 1892), and Hazen v. Addis , 14 N.J.L. 333 (Sup. Ct. 1834), discuss the necessity that the award of the arbitrators must be definite and final. On the basis of this test, the omission of Martin Tave as a party to the arbitration is not grounds for vacation of the award. All the relevant issues in the arbitration were before the arbitrators and, unlike Salkind, supra , ...


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