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(148 N.E.) The scheme of the law thus divides the , an arbitrator may resign at the last moment, arbitration proceedings into two parts: (a) if concert of action in reaching a decision The hearing, and (b) the decision and award. as distinguished from the award itself is All the arbitrators must hear the allegations necessary, no award could be reached in any and proofs of the parties, but an award by case if at the eleventh hour one of the three a majority of them is valid unless the sub- found himself in the minority and sought to mission otherwise provides. Even when, serve his own interests or those of the party prior to the enactment of the Arbitration naming him by resigning. The law does not Law of 1920, agreements to arbitrate and contemplate that the edifice thus elaborately submissions were arbitrarily revocable up to raised should be toppled over by such an a certain stage in the proceedings, the Code untimely explosion from within. The saluof Civil Procedure, section 2383, drew the tary purpose of an arbitration is the sumline thus indicated between the hearing and mary and extrajudicial settlement of conthe award. It read:

troversies between parties. The court should "A submission to arbitration

pause before permitting a technical and not be revoked by either party, after the alle strained construction of the law or the agreegations and proofs of the parties have been ment of the parties to defeat that purpose. closed, and the matter finally submitted to the If the law or the parties contemplate the arbitrators for their decision."

possibility of an endless chain of frustrated

arbitrations or the summary termination of Now that agreements to arbitrate are no the submission, when the pen is in the hand longer revocable at the will of a party but of two of the arbitrators to sign an award, may be enforced by a party who is aggrieved the meaning should be unmistakably exby a refusal to proceed to arbitration, this pressed. It is highly improbable that any limitation no longer has a place in the law arbitration agreement or submission to arand has been repealed, but it is significant bitration would be made if it would involve that, even under the earlier practice, a party the parties in such absurd consequences. who stayed in until the final submission to Laws should be construed sensibly, and plain the arbitrators for their decision could no purposes should not be defeated by narrow longer trim his sails to shift his course when interpretations. the wind of defeat began to rise.

It follows that the withdrawal of one of At common law more latitude was allowed the arbitrators on the threshold of a formal as to the hearing. Where the submission award does not end the authority of the was to three, with power to two to make the other two, unless the terms of the arbitraaward, two had power to hear where the tion submission take the case out of the third was notified and refused to attend or general rule governing majority awards. was willfully absent (Crofoot v. Allen, 2 The arbitration agreement and the Civil Wend. 494), but by the Revised Statutes Practice Act should be read in harmony, (now Civil Practice Act) all the arbitrators where harmony is possible. Literally, the were required to hear all the proofs and al-- agreement provides that, if an arbitrator legations of the parties, otherwise the award ceases to act, a substitute arbitrator shall was a nullity. (Bulson v. Lohnes, 29 N. Y. be chosen. But the substitute clause need 291). No further change was made in the not be read so crabhedly as to permit an common law. It is not said that all the unreasonable result in flat contradiction of arbitrators must participate in making the the common and statute law. The letter award. That is an exception to the general should be enlarged within legitimate bounds, rule which may be expressly stipulated for rather than limited, when the end in view by the parties. All the arbitrators should may thereby be more effectively accombe notified to meet for deliberation, so that plished. opportunity for full consultation is furnish [3] Under a fair and equitable interpreed, but it is not the rule that one may then, tation of the submission agreement, a va.. bg willful absence-and resignation at this cancy caused by the withdrawal of an arbistage is no less than willful absence---pre-trator need not be filled after the case has vent an award by a majority. All should been heard, considered, and practically demeet and hear the proofs, but the report of cided. The withdrawal at that point does two is valid, unless the third has been ex- not prejudice the rights of the parties to a cluded from participation in their delibera- hearing before a full board and an award tions without fault on his part. The refusal by a majority, or make necessary a rehearing of the third arbitrator to attend after final of all the allegations and proofs of the parsubmission ceases to be material when its ties before a substitute arbitrator. effect would be to

ggle one of the parties The orders should be reversed, with costs out of the benefit of the arbitration. Car- in all courts, and application to confirm penter v. Wood, 42 Mass. (1 Metc.) 409. If award granted, with $10 costs.

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CRANE, J. (dissenting). The Arbitration / ing accepted the appointment hereunder, shall Law is based on contract. There can be later cease to act as such arbitrator through no arbitration enforced upon the parties by death, resignation or otherwise, the parties of the courts in the absence of contract. The the first part shall (1) elect an arbitrator from contract of arbitration is to be construed among the individuals named in the list of 'Pro

posed Arbitrators,' annexed hereto." like any other contract and all its terms and conditions given force and effect unless they

The opinion of th court in my judgment are against public policy or illegal. Matter amends and modifies this contract. The resof Zimmerman v. Cohen, 236 N. Y. 15, 139 N. ignation of Osborn, it says, must take place E. 764.

before the hearings have ended and not aftArticle 2, 88 3 and 4, of the Arbitrationer. There is no such limitation in the conLaw, are based upon a previous existing contract. The parties have agreed otherwise, tract. If the contract provides how an ar- and as I have before stated, I do not think bitrator shall be appointed in case of failure the law prevents them from making such an or neglect of one to act, this method must agreement. Such a limitation does not apbe pursued. The court acts only on failure ply, I take it, in case of Osborn's death aftof the parties to live up to the contract. a hearing and before decision. Why There is nothing in the law that prevents should there be this limitation in the one the parties from contracting for the appoint- instance and not in the other? Of course ment of three arbitrators, and that if one we must assume that there was the utmost should resign after the hearings were closed, good faith in the resignation. Bad faith and before decision, another should be ap- changes all things. The cases where an arpointed in his place. In fact, this is what bitrator deliberately resigns in order to prehappens in case of death. Should one of vent an adverse decision can be dealt with three arbitrators die at the end of the hear when they arrive. This is not such a case. ings and before decision, another arbitrator, The contract having provided for an arbi. in my opinion, would have to be appointed to tration, the decision was as important as the take his place. An award by the two living hearings. The respondents were entitled to arbitrators would be void.

an arbitrator appointed by them to discuss The result is the same when one of the the case and present his views, whatever arbitrators ceases to exist as such by resig- they were, and both parties were entitled to nation. He is actually dead to the proceed three arbitrators, able to act and functioning. The case would be different if his resig- ing as such at the time of the decision, alnation was brought about by the action of though the majority vote of the three could the party appointing him, or was done in make the decision. Civ. Prac. Act, $ 1453. bad faith. We must assume in this case, aft Such is the contract as I read it, which er the unanimous affirmance, that Osborn's the parties have made. For these reasons I resignation was in the utmost good faith; dissent. and it is conceded that the respondents are not the cause, but the sufferers. They con HISCOCK, C. J., and CARDOZO, Metracted for just such an emergency in the LAUGHLIN, ANDREWS, and LEHMAN, very first paragraph of the arbitration JJ., concur with POUND, J. CRANE, J., agreement:

reads dissenting opinion, In the event that Frank H. Osborn shall refuse to act as such arbitrator or, hav Orders reversed, etc.

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(148 N.E.)

M. M. Johnson, of Boston, for defendants NEW YORK CENT. R. CO. et al. V. AYER in error. et al.

RUGG, C. J. This is a writ of error. It (Supreme Judicial Court of Massachusetts. Suffolk. June 29, 1925.)

is brought to reverse a final decree entered

upon a petition for attachment for contempt 1. Easements m 61(12)-Decree held to re in a suit in equity which has been before this quire removal of hatch way from passageway. court in other aspects and is reported in 239

Decree unequivocally and positively requir. Mass. 70, 131 N. E. 325, and in 242 Mass. 69, ing removal of hatchway from passageway in 136 N. E. 364. The case was brought in orwhich plaintiffs had easement, and filling of der to enforce the rights of the plaintiffs to excavations so as to render passageway as firm, sound, and convenient for passage as on speci- have a strip of land ten feet wide on the defied date, did not permit retention of the hatch- fendants' land, being one-half of a 20-foot way, though covered, so as to make passage- passageway over which the plaintiffs have way safe.

rights, kept open and unobstructed. The 2. Easements Em 61(12)-Decree held not to plaintiffs prevailed on the merits of the main permit maintenance of stairway and elevator

action. The final decree after the last rewell, but violated, if so construed.

script ordered the defendants "to cause the Decree reguiring defendants to cause por


the hatch. tion of passageway in which plaintiffs had ease

way about 4 feet square in the concrete sidement, to be filled or covered and strengthened, walk

[and] filling or covering all 80 as to render passageway as firm, safe, and excavations in such a way as to render the convenient for passage on foot and by teams passageway substantially as firm, sound, and and trucks as on specified date, held erroneously convenient for passage on foot and by teams construed as permitting maintenance of stairway and elevator well with safe and sufficient and trucks as it was on April 18, 1899." covers, but, even if so construed, violated, so

[1] The single justice on the petition for as to render defendants guilty of contempt, attachment for contempt found and ruled when covers were not of sufficient thickness and with respect to this matter: strength to make passageway safe and convenient for heavy trucks.

"That the hatchway in the concrete sidewalk

on the westerly side of the Lenox Hotel build3. Appeal and error Ew5Writ of error does ing has not been removed and that the decree not lie to correct errors of law in equity de has not been complied with by filling or covcree; "judgment in civil action."

ering all excavations in such a way as to renA writ of error does not lie to correct er. der the passageway substantially as firm, sound rors of law in a decree in equity; words “judg- and convenient for passage on foot and by ment in civil action,” in G. S. c. 250, $ 3, not teams and trucks as it was on April 18, 1899. including proceedings in equity.

It is the contention of the petitioners that by [Ed. Note.-For other definitions, see Words the terms of the decree the hatchway is to be and Phrases, First and Second Series, Judg. removed. It was said in the last opinion in this ment (in Law).]

case, 242 Mass. 69, at page 74, 136 N. E. 364,

that 'they (the defendants) are the owners of 4. Contempt 40—Contempt proceedings not the fee of the strip of land ten feet in width strictly either civil or criminal.

adjacent to their main lot, being one-half of Proceedings in contempt are sui generis in the passageway. By virtue of such ownership their nature, and not strictly either civil or

they have the right to make any reasonable use

of the land covered by that part of the pascriminal, as those terms are commonly used.

sageway not inconsistent in law with the para5. Contempt ww66(7)-Amount of fine not mount easement owned by the plaintiffs. The open to revision.

terms of that paramount easement require them

to keep their part of the passageway open above Where petition for attachment for contempt, rulings, and form of decree indicate that the part of the passageway of which they own

the ground. But the defendants may surface proceeding was designed to enforce property the fee in any appropriate way so long as pasrights, and defendants were found guilty,

sage over it is left safe and convenient and amount of fine is not open to revision on com- adapted for the uses for which it was estabplainant's writ of error.

lished.' In view of the foregoing statement in

the opinion, considered in connection with the Error to Supreme Judicial Court, Suffolk language of the final decree, after rescript, I County; John C. Crosby, Judge.

am of opinion and rule that the defendants are Suit by the New York Central Railroad is covered in such a manner as to make that

entitled to maintain the hatchway, provided it and another against James C. Ayer and part of the passageway at all times as safe others to enjoin encroachments on a pass- and convenient for passage on foot and by ageway in which plaintiff had easement. To teams and trucks as it was on April 18, 1899. reverse final decree entered on petition for I find that the cover over this hatchway, conattachment for contempt, complainants bring sisting of steel three-eighths of an inch in

thickness is not a compliance with the decree, Writ dismissed.

and while safe and convenient to pass over by C. 0. Pengra, of Boston, for plaintiffs in persons on foot is entirely inadequate and un

safe for passage by trucks. This conclusion is

writ of error.


For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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in accordance with the testimony of expert wit Here also there was error in the interpre.
nesses called by both parties. I further find tation of the final decree. In the decision in
that the defendants have failed to cover this 239 Mass. 77, 131 N. E. 327, in explaining and
hatchway with suitable material to render it delimiting the scope of the words creating
safe within a reasonable time after July 15,
1922, and that by reason of such failure they the grant and reservation, it was held that
are in contempt.”

they “import an intent of the parties that

the entire passageway and not a convenient This interpretation of the decree was er part of it shall be subject to an easement of roneous. The words of the decree are un passage, of light and air and of drainage," equivocal and positive to the effect that the and that evidence of general use of like easehatchway must be removed. The manifest ments in Boston was immaterial. The secpurpose of the decree in the light of the two ond opinion in 242 Mass. 69, 136 N. E. 364, opinions of the full court was to assure to did not purport to modify the general printhe plaintiffs freedom of passage over that ciples of law declared in the first opinion. part of the way occupied by the hatchway, It merely preserved to the defendants the but not to require the defendants to fill with right to use the land beneath the surface of earth the space underneath the hatchway, the way in any manner not interfering with Provided without doing that the passageway

the right of passage described in the earlier could be made safe for the passage of heavy opinion. The first decree went further in trucks. The right of way of the plaintiff's that respect than the principles of law reover the surface of the passageway was to be quired. The interpretation of the final douninterrupted by the opening of the hatch cree after the last rescript by the single jusand its use for the purposes for which a tice on the petition for contempt, goes to the hatchway is commonly used.

extent of interfering with the rights of pas[2] As to another ground of complaint sage of the plaintiffs over the surface of the urged by the plaintiffs, the single justice way as established by the opinions of this found that:


Nevertheless, the defendants were adjudg. “The defendants have failed to comply with ed guilty of contempt for failing to comply the terms of the decree which ordered them with the terms of the final decree after the to 'cause that portion of the passageway on the last rescript. That finding manifestly was southerly side of said building occupied by a flight of steps leading downward, being 10 feet sound even in the view of that decree taken long by 4 feet wide, by the openwork iron grat- by the single justice. The decree of the court ing near the head of the stairs toward Exeter adjudged the defendants guilty of contempt street covering an open area or air well 4 feet and ordered them to “pay a fine of one bunwide and 8 feet long and the curbing or wall | dred and fifty dollars ($150) for such conwhich runs around this area, to be filled or tempt, the same to be paid to the complaincovered and strengthened so as to render those ants to reimburse them for their costs and parts of the passageway substantially as firm, sound and convenient for passage on foot and expenses incurred in this proceeding." by teams and trucks as it was on April 18, 1899,

It is urged by the defendants that, even and as reasonably usable for such passage in though there was error in the rulings, there is connection with the rest of the passageway as no ground in law for reversal of the decree it was on that date, the level of said portion of entered on the petition for contempt. This the passageway to be so changed as to be made involves some inquiry into practice. to conform substantially to the level of the

[3] A writ of error does not lie to correct passageway on that date, and all structures to be removed so far as necessary to that end.' 1 words “judgment in a civil action” in G. L.

errors of law in a decree in equity. The find and rule that the defendants have covered by concrete the open space from the head of

c. 250, $ 3, do not include proceedings in the stairs toward Exeter street in compliance equity. “A writ of error lies where the prowith the decree; that they maintain the stair- ceedings are according to the course of the way with a cover over it, and also maintain an common law, but it does not lie in proceedelevator for lowering and raising trunks and ings in equity unless it is authorized by other articles to and from the sidewalk and the statute. The customary remedy in equity to basement of the hotel; that this elevator is

reverse a final decree for errors of law apclosed with a cover over it substantially on a parent on the record is by a bill of review." level with the sidewalk when not in use; that Evans v. Hamlin, 164 Mass. 239, 240, 41 N. E. the stairway and elevator well when closed are covered by steel doors; that these covers, while 267; Nashua & Lowell Railroad v. Boston & suitable and sufficient for foot passage, are not Lowell Railroad, 169 Mass. 157, 161, 162, 47 of the required thickness and strength to make N. E. 606; Mulrey v. Carberry, 204 Mass. 378, the passageway safe and convenient for heavy 90 N. E. 576. Nothing to the contrary was trucks; that the defendants have failed to com- decided in Home Investment Co. v. Iorieno, ply with the decree in not placing over said 246 Mass. 346, 348, 141 N. E. 78. openings suitable and sufficient doors or covers within a reasonable time from and after July

It was said by Chief Justice Knowlton in 15. 1922, and are in contempt by reason of such Newton Rubber Works v. De Las Casas, 198 failure. I rule that if safe and sufficient covers Mass. 156, 157, 84 N. E. 119, that errors of are placed over the stairway and elevator well law arising at a hearing on a petition for that the decree will be complied with.”

contempt “are usually presented by a report,

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(148 N.E.) or, if a criminal contempt is alleged, by a but the subject has not been fully discussed writ of error.” A citation of supporting au- and under our practice that line of demarthorities follows. White v. White, 233 Mass. cation has not been strictly observed. Fines 39, 123 N. E. 389. Whether appeal lies to the use of the commonwealth and not of from such a decree or whether exceptions the party have been imposed under the forms may be taken at such a trial has never been of civil procedure. Instances of this are Cas. decided in this commonwealth, although in- son v. McIntosh, 199 Mass. 443, 85 N. E. 529; timations are to the contrary. Hurley v. Irving & Casson v. Howlett, 229 Mass. 560, Commonwealth, 188 Mass. 443, 444, 74 N E. 118 N. E. 901; Stodder v. Rosen Talking 677, 3 Ann. Cas. 757; Kelly v. Morrison, 234 Mach. Co., 247 Mass. 60, 141 N. E. 569. Mass. 382, 125 N. E. 576; De Ferrari v. De Doubtless there are other cases of this sort, Ferrari, 220 Mass. 38, 107 N. E. 404. It has which, or some of which, have not come to been said to be open to grave doubt whether the full court. It was said in McCann V. exceptions lie in proceedings for direct con- Randall, 147 Mass. 81, 90, 17 N. E. 75, 83, 9 tempt for court. Commonwealth v. McNary, Am. St. Rep. 666: 246 Mass. 46, 48, 140 N. E. 255, 29 A. L. R.

“Proceedings for contempt may be either for 483. A complaint for contempt for violation the purpose of inflicting punishment upon one of an interlocutory or final decree in equity who has wilfully disobeyed a lawful order of "is really but an incident to the principal | the court, or for the purpose of obtaining the suit, and all the papers relating to it should result which might have been reached by the be filed with the other papers in the case." enforcement of its decree but for the intervenIt is irregular to treat such a complaint as a

tion of the wrongful act of the party violating distinct cause.

its order, or in appropriate cases for both purWinslow v. Nayson, 113

poses." Masg. 411, 420. In Cartwright's Case, 114 Mass. 230, 239, which grew out of a receiver [4] Whatever also may be said about proship proceeding where the receiver misappro- ceedings for contempt, it is plain that they priated funds, it was said:

are sui generis in their nature and not strict“An application for an attachment for con- | ly either civil or criminal, as those terms comtempt is to be made and filed in the original | monly are used. Cartwright's Case, 114 cause; after the attachment has issued, the Mass. 230; Walton Lunch Co. v. Kearney, proceedings are distinct and are criminal in 236 Mass. 310, 128 N. E. 429; Myers v. United their nature." Hamlin v. N. Y., N. H. & H. R. States, 264 U, S. 95, 44 S. Ct. 272, 68 L, Ed. Co., 170 Mass. 548, 550, 49 N. E. 922.


[5] The frame of the petition for attach-
The distinction between civil and criminal ment for contempt, the rulings of the single
contempts often has been made, and impor- justice and the form of the decree indicate
tant results sometimes have been made to that that proceeding was designed to enforce
turn on that distinction. See, for example, the property rights of the plaintiffs and was
Bessette v. W. B. Conkey Co., 194 U. S. 324, so treated by the court. The defendants
24 S. Ct. 665, 48 L. Ed. 997; Gompers v. were found guilty of contempt in the very
Buck's Stove & Range Co., 221 U. S. 418, 31 particulars for which the plaintiffs contend-
S. Ct. 492, 55 L. Ed. 797, 34 L, R. A. (N. S.) ed and now contend. Manifestly the amount
874; In re Nevitt, 117 F. 448, 54 C. C. A. or the fine is not open to revision.
622; Terminal Railroad Association of St.

All these considerations lead to the conclu-
Louis v. United States, 266 U. S. 17, 27, 45 sion that the plaintiffs are not entitled to any
S. Ct. 5, 69 L. Ed. 150. That distinction has relief on the present record.
been referred to in some of our decisions; Writ dismissed.

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