R. H. Howes Construction Co. v. Childs Dining Hall Co.

The failure of the arbitrators to allow the defendant for certain substantial items, one of which was concededly furnished by the defendant and not by the contractor, added to the other evidence, shows clearly ‘that the counterclaims were not passed upon and makes necessary the vacating of the award. Whether or not the award should stand was the issue before the court at Special Term. In the disposition of this issue this court undoubtedly has the power, when reversing the order denying the motion to vacate, to give effect to its decision upon this question by also vacating the order confirming the *818award and the judgment entered thereon. I, therefore, vote to reverse the order denying the motion to vacate the award and to grant said motion, and to vacate the order confirming the award and the judgment.