In re the Arbitration between Famous Realty, Inc. & William Savage, Inc.

Appeal from an order and judgment (one paper) which granted respondent’s cross motion to confirm an award of arbitrators, denied appellant’s motion to vacate the award, and directed appellant to pay the amount awarded. Order and judgment (one paper) unanimously affirmed, with costs. Prior to the time that appellant submitted its reply brief to the arbitration tribunal, which was on or before September 15, 1953, it was apprised of the fact that one of the arbitrators had died. The death took place after all the proofs of the parties had been presented to the arbitrators. Appellant was also notified by a clerk on behalf of the said tribunal on or about September 19, 1953, that the two surviving arbitrators would render the award. Thereafter, the award was rendered by them on or about November 12, 1953, without appellant in the meantime having ques*958tioned the authority of the surviving arbitrators to render a valid award. Under the circumstances, appellant must be deemed to have waived its right to contest the validity of the award on the ground that one of the arbitrators had died. Present • — • Nolan, P. J., Adel, Wenzel, Mac Crate and Murphy, JJ. [See post, p. 1058.]