Opinion
April, 1893.
J.M. Buckingham ( W.C. Trull, of counsel), for plaintiff (respondent).
C.E. Souther, for defendants (appellants).
The alleged defect in the complaint is that the written award or decision of the arbitrators (which is annexed to it) fails to show that they valued the lot upon the principles stated in the covenant, and that they calculated the required percentage upon a valuation of the lot as therein provided; also that the complaint fails to show their compliance with these requirements of the covenant, and does not allege in addition that they were sworn, and that their decision was delivered to the lessor, his heirs or assigns.
There is nothing in the covenants of the lease which required the written decision of the arbitrators to be in any particular form or to contain any matter except their decision. They were to determine what would be "a reasonable yearly rent," and their award need contain nothing more. And the plaintiff is not bound to set forth in his complaint a compliance by the arbitrators with the rule which is to govern their deliberations and control their decision. That rule simply requires them to estimate the full and fair value of the lot, and this requires the exercise of their judgment upon the evidence as to what is such full and fair value. There is no way of proving that the arbitrators exercised their judgment upon the evidence. It is to be presumed until such gross discrepancy between the award and the value is shown as to warrant a charge of bad faith or fraud. Matter that is not to be proved need not be alleged. To hold otherwise would compel plaintiff to prove that the rent as fixed by the arbitrators is "reasonable," and this could not be done without substituting the court for the tribunal agreed upon by the parties for the very purpose. No case cited by appellants holds otherwise. In Delaware Hudson C. Co. v. Penn. C. Co., 50 N.Y. 250, the decision of the arbitrators had not been obtained, and thus the measure of liability was not determined.
But, generally, as to all objections to the form of the decision and to the want of allegations that the arbitrators were sworn, and that they had complied with the covenants, and that a copy of the award had been served as required by the covenant, it is a sufficient answer that the complaint contains averments showing that failure to comply with these requirements, if there were such failure, was waived by the defendant, who proceeded to a pretended compliance with the award, and to tender a lease at the rental therein fixed. This shows that the award was received by her or communicated to her. It is manifest that after thus treating the award as regular and admitting a compliance with the covenant the defendant cannot after suit brought upon such admission and waiver set up noncompliance with formal or other requisites. Service of a copy of the award may be waived. Gidley v. Gidley, 65 N.Y. 170. The failure to take the oath is a mere irregularity ( Howard v. Sexton, 4 N.Y. 157), and generally every intendment is in favor of the award. Butler v. Mayor, etc., 1 Hill, 489; 1 Am. Eng. Ency. Law, 696.
Judgment and order appealed from affirmed, with costs.
BISCHOFF and PRYOR, JJ., concur.
Judgment affirmed.