Robins Silk Mfg. Co. v. C.P. Dye Works , 251 N.Y. 87 ( 1929 )

The appellant, Robins Silk Manufacturing Co., Inc., delivered silks to the respondent, Consolidated Piece Dye Works, to be dyed. A controversy as to the manner in which the work had been done was submitted to arbitration. A motion was made by the appellant to vacate the award on two grounds: First, that one of the three arbitrators had been guilty of misbehavior in inspecting the respondent's machinery in the absence of the parties, andsecond, that another arbitrator had been guilty of misbehavior in bargaining with the respondent for employment while the arbitration was pending. The Supreme Court at Special Term upheld the first of these charges, though refusing to sustain the second. The Appellate Division reversed and confirmed the award.

As to the first of the two charges, the evidence sustains a finding that the arbitrator who inspected the machinery was acting with the knowledge and consent of both the parties to the proceeding. In such circumstances there can be no basis for a holding that the inspection was misconduct within the rule ofBerizzi Co., Inc., v. Krausz (239 N.Y. 315). Whether misconduct might have been found in the absence of consent, there is no occasion to consider.

As to the second of the two charges, the evidence sustains a finding that the treaty for employment did not begin till the award had been made, at a time, therefore, when the arbitrator was functus officio. If he had bargained for employment while the arbitration was pending, his act would have been misbehavior so flagrant and offensive as to vitiate the award, though the closing of the contract was postponed till later. The courts below have found, however, that he is not subject to that reproach. The proposal did not come from him, but came from the new employer, and came for the first time when he had ceased to be an arbitrator. What he did in bargaining so soon thereafter might better not have been done since it has exposed him to suspicion. We cannot say that it was misbehavior as matter of law.

The judgment should be affirmed with costs.

CARDOZO, Ch. J., POUND, CRANE, LEHMAN, KELLOGG, O'BRIEN and HUBBS, JJ., concur.

Judgment affirmed.