Heath v. President of Gold Exchange , 38 How. Pr. 168 ( 1869 )

Loew, J.

As the injunction which was issued in this action has been modified with the consent of the plaintiffs’, so that the officers and members of the Hold Exchange, and the arbitration committee thereof, are now only enjoined and restrained from holding any arbitration in respect to the claims of W. F. Livermore & Co. against the plaintiffs, I shall only consider that point.

By article 7 of the Constitution of the New York Hold Exchange, of which plaintiffs are or were members, it is provided as follows: “The arbitration committee shall consist of a chairman, to be elected annually by ballot, and to serve for one year, and two members to be appointed by the president on the first of every month, to serve for one month. It shall be the duty of said committee to take cognizance of and exercise jurisdiction over all claims and matters of difference bel ween the members of the Board, and their decision shall be binding.”

The precise effect of an arbitration clause like this, in the constitution of an unincorporated association like the Hold Exchange, upon persons who voluntarily become members thereof, and agree to submit to and abide by the constitution and by-laws of the same, has, I believe, never been judicially determined. Before the constitution and laws of such an association can have any binding force whatever upon a member thereof, which will be recognized and enforced bj^ the courts, it must appear that such member personally assented to their provisions (Austin v. Searing, 16 N. Y., 112). Assuming that the plaintiffs in this action assented to the constitution of the Hold Exchange in such a manner as to establish a valid contract between them and the other members of the association, the question arises, what binding force or effect has this seventh article upon them % In my opinion the most that can possibly be claimed for it is that ifc should have the same force an-.l effect as an agreement in writing, made by persons, to submit to the decision of one or more arbitrators any conlroversy existing between them. If I am correct in this conclusion, it will become necessary to ascertain what the law is, in regard to an ordinary agreement to submit a matier in difference to arbitration.

For the reason that the enforcement of such' agreements is deemed against public policy, and as courts of justice-are presumed to be better capable of administering and enforcing the real rights of the parties than mere private arbitrators, such agreements are not enforced either by a court of la.w or a court of equity (2 Story Eq. J., § 1,457 ; 1 Id., § C07 ; Kill v. Hollister, 1 Wils., 129 ; Street v. Rigby, 6 Vesey, 818 ; Agar v. Macklew, 2 Sim. & S., 418 ; Milnes v. Gery, 14 Vesey, 408 ; Thompson v. Charnock, 8 Term, 139 ; Haggart v. Morgan, 5 N. Y. [1 Seld.], 422). But, after an award has been made, it is conclusive on the parties, and m ¡y be enforced if it is unimpeached and unimpeachable (2 Story Eq. J., § 1,458). By the Revised Statutes, a party is permitted to revoke the powers of the arbitrators, at any time before the cause is finally submitted to them for their decision (2 Rev. Stat., 544, § 23 ; Curtis v. Barnes, 30 Barb., 225 ; Allen v. Watson, 16 Johns., 205). This section of ■ the Revised Statutes, it seems, applies to all cases of submission to arbitration (Bloomer v. Sherman ; 2 Edw., 452, and see same case on appeal, 5 Paige, 575). And the court of appeals, in the case of Austin v. Searing (supra), speaking of such voluntary associations like the Grold Exchange, says : “To create a judicial tribunal is one of the functions of sovereign power; and although parties may always make such tribunals for themselves in any specific case, by a submission to arbitration, yet the power is guarded by the most cautious rules. A contract that the parties will submit confers no power on the arbitrator ; and even when there is an actual submission it may be revoked at any time.”

In my opinion, therefore, the plaintiffs had a perfect right to revoke and annul—as they allege by their complaint they did—any power to arbitrate they may have' previously conferred upon either the Gold Exchange or the arbitration committee thereof.

I do not understand that these views in anywise conflict with the case of White v. Brownell, decided in this court (3 Abb. Pr. N. S., 318 ; 4 Id., 162).

It was there decided that the Open Board of Brokers had the right to suspend or expel a member upon a breach of the by-laws by him in respect to the fulfillment of a contract. And, although the question of the effect of the arbitration in that case was the subject of discussion, yet the court both at special and .general term refused to pass on that question.

Now, whether the plaintiffs be regarded as members of the defendant’s organization, as they claim they are in their original complaint, or as having resigned and ceased to be such members, as they allege in their supplemental complaint, they having revoked and annulled any contract of submission to arbitration they may have made, any action which the Gold Exchange or the arbitration committee thereof may take in the premises will-amount to nothing. The defendants cannot enforce any award or judgment that they may make or render, and 1 apprehend that the plaintiffs could not be affected or injured by it in any way.

Having come to this conclusion, it would seem that the plaintiffs are not entitled to a temporary injunction. A court of equity should be extremely cautious in the exercise of the power to issue an injunction, and should award it only in very clear cases (Woodward v. Harris, 2 Barb., 439). It should not be granted in every case in which a party brings himself within the letter of section 219 of the Code, but the nature and extent of the injury which the plaintiff would suti'er, if the injunction were withheld, should be taken in consideration (Bruce v. Delaware & Hudson Canal Co., 19 Barb., 371 ; Gallatin v. Oriental Bank, 16 How. Pr., 253; McCafferty v. Glazier, 10 Id., 475).

The motion to continue the injunction should be denied, and the temporary injunction dissolvód.