People ex rel. Union Insurance v. Nash , 15 N.Y. St. Rep. 166 ( 1888 )

Van Brunt, P. J.:

In view of the conclusion arrived at as to the power of the court to entertain this proceeding, it is not at all necessary to consider the question as to whether Lorenzo Dimmick, one of the parties to the arbitration, could revoke the same notwithstanding the clause in the agreement waiving revocation. We do not see how the court can compel the arbitrators to act. The arbitration was a simple private contract • between the parties to it. It is true that it might be claimed to have been framed pursuant to the provisions of the Code in respect to arbitrations. But that these provisions of the Code were not intended to guide and govern the arbitration is evident because the operation of many of them are expressly stipulated against. The arbitration therefore seems to be a common law arbitration, and it is the enforcement of a common law arbitration which is sought to be attained by this writ of mandamus.

We are not aware of any rule, nor has our attention been called to any principle which has been establishes, which authorized the court by this proceeding to enforce tbe rights of parties under such an agreement. Mandamus, it has been held, is appropriate where a public duty is imposed or some act specifically directed by statute, but it will not lie to enforce mere private contracts. (People ex rel. Coppers v. Trustees, etc., 21 Hun, 195.) It may be Risked what remedy a party has if the arbitrators improperly refuse to perform their functions. It is a sufficient answer that the remedy by ma/ndamus does not seem appropriate as it is not sought to enforce any public duty or any act specifically directed by statute, but simply to carry into effect the private contract of the parties to the arbitration agreement. What the proper remedy of the relator is to procure redress it is not necessary for us to advise. It seems to be clear for the reasons above stated that no relief can be afforded by ma/ndamus.

The order should be affirmed, with costs and disbursements.

Bartlett and Macomber, JJ., concurred.

Order affirmed, with costs and disbursements.