Opinion
June 18, 1959
Order and judgment unanimously reversed on the law, without costs; the cross motion to vacate the awards is granted, and the controversy between the parties is remanded for an arbitration de novo before the American Arbitration Association. After an arbitration award had been made in favor of petitioner in the sum of $4,922.45, petitioner moved to modify the award and to enter judgment upon the award, as modified. Modification of the award was predicated upon a contention that the arbitrators had failed to include an item of $1,000 to which petitioner was entitled. However, it clearly appeared that no claim had been made before the arbitrators for the $1,000; and, in fact, petitioner had neglected to inform its own attorney about the matter. Respondent-appellant made a cross motion to vacate the award. The motion to modify was granted to the "extent of remanding to the arbitrators the issue as to the award and the award should be increased by the sum of $1,000". Thereafter, the arbitrators increased the award; and petitioner's motion to confirm the award, as modified, was granted. Special Term had no power to remand the issues to the arbitrators. Once the arbitrators made their award they became functus officio and "without any power to alter or modify or do any other act under the submission". ( Herbst v. Hagenaers, 137 N.Y. 290, 294; 3 Am. Jur., Arbitration Award, § 93.) The Civil Practice Act (§ 1462-a, subd. 1) gives the court the power to modify or correct an award where there has been an "evident miscalculation of figures". Quite obviously that was not the situation here, for the arbitrators were not even presented with any evidence as to the $1,000 item. Neither party has contended that the original award be confirmed. Hence, it seems appropriate that the entire controversy should be remanded for a new arbitration.
Concur — Botein, P.J., M.M. Frank, Valente, Stevens and Bastow, JJ.