Opinion
November 21, 1958
Wikler Gottlieb for petitioner.
Bowling Bowling for respondent.
Motion to vacate an award of arbitrators as in excess of their powers and beyond the submission (Civ. Prac. Act, § 1462, subd. 4) is granted ( Matter of General Fuse Co. [ Sightmaster Corp.], 7 Misc.2d 997, 998-999, citing Matter of Western Union Tel. Co. [ American Communications Assn.], 299 N.Y. 177).
In accordance with their contract which affords arbitration solely "In the event of disagreement between the Company and the Insured * * * with regard to any benefit claimed to be due under this policy" the parties went to arbitration on the petitioner's demand arising from refusal of benefits for claimed disability in September-October, 1957. The result was an award which denied the claim according to the policies, a direction to the petitioner to surrender them with substitution by the carrier of new policies with lesser benefits and an award of benefits on the assumption that the newly issued policies were those in effect at the time. The arbitrators had no power under the agreement or the submission to rescind or reform the contract of the parties. Furthermore, if it be said contrariwise, that the arbitrators under the submission had the power to rescind the contract, striking it down would carry with it the provision for arbitration and the underlying basis for that procedure.
Settle order.