Opinion
November, 1909.
Riegelman Bach for Concrete Company.
Rosenthal, Steckler Levi, for Samuel Green.
Upon the record before me I am constrained to a denial of this application to confirm the award of arbitrators. For the purpose of the court's jurisdiction to grant an order confirming the award, as distinguished from proceedings by action to enforce an award upon a common-law submission, the requirements of the statute must be complied with, and it must appear that the agreement of submission was executed with the formalities prescribed by law. Smadbeck v. City of Mount Vernon, 124 A.D. 515; Electric Steel El. Co. v. Kam Malting Co., 112 id. 686. The requirement of the statute (Code Civ. Pro., § 2366) as to the execution of an agreement of submission is that "it shall be in writing, duly acknowledged or proved, and certified in like manner as a deed to be recorded." This obviously means that the agreement should be executed and acknowledged with the formalities which would be necessary in the case of the acknowledgment of a deed to be recorded in this State, and necessarily requires that the acknowledgment, when taken before a notary public of another State, be authenticated by the proper certificate, as in the case of a deed. In the present proceeding the only direct proof before me is that the agreement executed upon the part of the Concrete Steel and Tile Construction Company in the State of Michigan was not authenticated. Such is the form of the paper annexed to the notice of motion, and such is alleged by the respondent Green to be the fact; and I cannot assume the contrary to support this application, which must proceed upon proof of actual compliance with the statute, if the court is to have power to confirm the award by order rather than by judgment in an action. The authority of the case of Cutter v. Cutter, 16 J. S. 470; 98 N.Y. 628, upon the question whether the statutory provisions can be waived by proceeding with the submission, has been so far weakened by later expressions of the Court of Appeals (Hinkle v. Zimmerman, 184 N.Y. 114) that it cannot be taken to apply to these provisions at the present time, and to suggest doubt as to the rule laid down in the cases before the Appellate Division to which I have referred above. I conclude that the motion be denied, without prejudice to the merits in an action upon the award.
Motion denied.