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$ 2360 From the time of the filing of a petition, by or in behalf of an infant, praying for a i order directing a conveyance, or a sale, mortgage, or lease of his real property, or of an interest in real pruperty, the infant is con. sidered a ward of the court, with respet to that real property or interest, and the income and proceeds thereof.
$ 2361. [Am'd 1890, 1893.] The court must, by order, direct the disposition of the proceeds of such a sale, mortgage or le ise. It must direct the investment of any portion thereof belonging to the infant or incompetent person, which is not needed for the payment of debts, or the safe, keeping or the immediate mainienance and elocation of himself or his family, or for the preserva'ion or improvement of his real property or his interest in re il property, It mu t require a report, under onth, of the disposition and investment thereof, to be male as soon as practicable, and must compel periodical accounts to be rendered thereafter, by such person, who is intrusted with the proceeds, or any part thereof. Where an inchoate right of duwer is released as prescribed in this title, the court shall make an order requiring one-third of the amount realized on the sale of the property to which the inchoata right of dower at. tached to be invested by the spo inl guardian, or paid into the court to be held for the benefit of the husband during his life and upon his death for the benefit of the wife during her life, or the court my direct s.id amount to be paid to the husband upon his giving a bond in the penalty of at lest double the amount so received for such release with at least two sureties who shall justify in double the amount of such penalty, conditioned for the repayment as the court sball direct by his executors or administrators of such amount upon the death of the husband.
$ 2362. Where the real property, or the estate, term, or other interest in real property, directed to be sold, is subject, absolutely or contingently, to a right of dower, or an estate for life, or is subject to an estate for years, in the whole or any part thereof, the person, having the prior right or estate, may manifest in writing his consent, either to receive, from the proc. eds of the sale, a gross sum, to be fixed according to the principles of law applicable to an. nuities, in satisfaction of his right or estate; or to bave a proportionate sh re of the proceer's of the sale invested, and the interest thereof paid to him, from the time of the investment, or of the cominencement of his right or estate, as justice requires, until the determination of his right or estate. Upon filing the consent with the clerk, the final order may, in the discretion of the court, direct & sale of
$82363, 2364 INCOMPETENT'S REAL PROPERTY. 205
the entire property, to which the right or estate attaches. In such a case, the court must, aiicr the sale, a certain the value of the right or interest of the person so consenting; and the final order must either direct the payment, from the proceeds of the sale, of the gross sum so ascertained as the value, or the investment of a just proportion of the proceeds, and the payment to him of the interest thereof. But such a gross sum shall not be pail, nor shall such an investment be made, unul an effectual release of the right or estate of the person so consenting, executed to the satisfaction of the court, and duly acknowledged or proved, and certified, in like manner as a deed to be recorded in the county, has been filed with the clerk.
$ 2363. Where the interest of the infant, or of the lunatic or other incompetent person, consists of a right of dower, or an estate for life, or for years, the final order may authorize the special guardian or committee to join, with the person or persons holding the reversionary estate, in a conveyance of the property to which the interest attaches, so as to release the right of dower, or fully convey the particular estate, on receiving, from the proceeds of the sale, a gross sum, in satisfaction of that interest, or a proportionate part of the proceeds, to be invesied until the deiermination of the particular estate ; and, in either case, to be ascertained as prescribed in the last section, Where & proportion of the proceeds is so received by the guardian or committee, for investment, the final order must provide for the investment thereof, until the determination of the particular estate ; and then for the payment thereof to the person entitled thereto.
$ 2364. In the application of money, arising from a sale, mortgage, or lease, made for the purpose of paying debts, as prescribed in this title, the special guardian of the infant, or the committee of the property of the incompetent person, must pay all debts, in equal proportion, without giving a preference to a debt founded upon a specialty, or upon which judgment has been taken.
Arbitrations, @ 2865. When submission to arbi. § 2372. Award ; to be authentration cannot be made.
ticated, etc. 2366. What controversies may 2373. Motion to confirm award.
be onbmitted, and how. 2374. Id.; to vacate award. 2367. Appointment of additional 2375. Id.; to modify or correct arbitrator, or uinpire.
award. 2368. Time for hearing; ad- 2376. Motions; when to be made. journment, etc,
2377. Costs on vacating award. 2389, Arbitrators to be sworn. 2378. Judgment on award; when 2370. Attendance of witnesses,
and how entered. Costs.
2379. Judgment-roll. 2371. All the arbitrators to meet; 2380. Effect of judgment ; how when majority may
enforced. award. Fees.
$ 2882. Effect of party's death, $ 2384. Liability of party to lunacy, etc.; proceed
revokes ings thereupon.
of recovery 2383. Revocation of submission.
2386. Application of this title. $ 2365. A submission of a controversy to arbitration cannot be made, either as prescribed in this title or otherwise, in either of the following cases :
1 Where one of the parties to the controversy is an infant, or a person incompetent to manage his affairs, by rta: son of lunacy, idiocy, or habitual drunkenness.
2. Where the controversy arises respecting a claim to an estate in real property, in fee or for life.
But where a person, capable of entering into a submission, has knowingly entered into the same with a person incapable of so doing, as prescribed in subdivision first of this section, the objection, on the ground of incapacity, can be taken only in behalf of the person so incapacitated And the second subdivision of this section does not prevent the submission of a claim to an estate for years, or other interest for a term of years, or for one year or less, in real property ; or of a controversy respecting the partition of real property between joint tenants or tenants in common : or of a controversy respecting the boundaries of lands, or
the admeasurement of dower. 26 Hun, 417. $ 2366. Except as otherwise prescribed in the last sec65. N. Y. 242 tion, two or more persons may, by an instrument in writ137 N. Y. 290.
ing, duly acknowledged or proved, and certified, in line manner as a deed to be recorded, submit, to the arbitration of one or more arbitrators, any controversy, existing be tween them at the time of the submission, which might be the subject of an action. They may, in the submission, agree that a judgment of a court of record, specified in the instrument, shall be rendered upon the award, made pur suant to the submission. If the supreme court is thus specified, the submission may also specify the county in which the judgment shall be entered. If it does not, the judgment may be entered in any county.
$ 2367. Where a submission is made as prescribed in this title, an additional arbitrator or an umpire cannot be selected or appointed, unless the submission expressly so provides. Where a submission, made either as prescribed in this title or otherwise, provides that two or more arbi. trators, therein designated, may select or appoint a person as an additional arbitrator or as an umpire, the selection or appointment must be in writing. An additional arbitrator or umpire must sit with the original arbitrators, upon the hearing. If testimony has been taken before his selection or appointment, the matter must be reheard, unless a rehearing is waived in the submission, or by the subsequent written consent of the parties, or their atiorners.
11 $ 2368. Subject to the terms of the submission, if any are specified therein, the arbitrators, selonte no prescribed
in this title, must appoint a time and place for the hearing of the matter submitted to them ; and must cause notice thereof to be given to each of the parties. They, or a majority of them, may adjourn the hearing from time to time, upon the application of either party, for good cause shown, or upon their own motion ; but not beyond the day fixed in the submission for rendering their award, unless the time so fixed is extended by the written consent of the parties to the submission, or their attorneys.
$ 2369. Before hearing any testimony, arbitrators 134 N. Y. 86. selected either as prescribed in this title or otherwise must be sworn, by an officer designated in section eight hundred and forty-two of this act, faithfully and fairly to hear and oxamine the matters in controversy, and to make a just award, according to the best of their understanding : unless the oath is waived, by the written consent of the parties to the submission, or their attorneys.
$ 2370. The arbitrators, selected either as prescribed in this title, or otherwise, or a majority of them, may require any person to attend before them as a witness; and they have, and each of them has, the same powers, with respect to all the proceedings before them, which are conferred, by the provisions of title second of chapter ninth of this act, upon a board, or a member of a board, authorized by law to hear testimony.
$ 2371. All the arbitrators, selected as prescribed in 26 Hun, 447. this title, must meet together, and hear all the allegations and proofs of the parties; but an award by a majority of them is valid, unless the concurrence of all is expressly required in the submission. Unless it is otherwise expressly provided in the submission, the award may require the payment, by either party, of the arbitrators' fees, not exceeding the fees allowed to a like number of referees in the supreme court; and also their expenses.
$ 2372. To entitle the award to be enforced, as pre- 134 N. Y. 86. scribed in this title, it must be in writing and, within the time limited in the submission, if any, subscribed by the arbitrators making it; acknowledged or proved, and certified, in like manner as a deed to be recorded ; and either filed in the office of the clerk of the court, in which, by the submission, judgment is authorized to be entered upon the award, or delivered to one of the parties, or his attorney.
$ 2373. At any time within one year after the award is 155 N.Y. 255. made, as prescribed in the last section, any party to the submission may apply to the court, specified in the submission, for an order confirming the award ; and thereupon the court must grant such an order, unless the award is vacated, modified, or corrected, as prescribed in the next two sections. Notice of the motion must be served, upon the adverse party to the submission, or his attorney, as prescribed by law for service of notice of a motion upon
137 N.Y. 290.
137 N.Y. 295.
an attorney in an action in the same court. In the supreme court, the motion must be made within the judicial districi, embracing the county where the judgment is to be entered.
$ 2374. In either of the following cases, the court specified in the submission, must make an order vacating the award, upon the application of either party to the submission :
1. Where the award was procured by corruption, frau:i, or other undue means.
2. Where there was evident partiality or corruption i the arbitrators, or either of them.
3. Where the arbitrators were guilty of misconduct, in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence, pertinent and material to the controversy ; or of any other misbehavior, by which the rights of any party have been prejudiced.
4. Where the arbitrators exceeded their powers, or so imperfectly executed them, that a mutual, final, and defin. ite award, upon the subject matter submitted, was not made.
Where an award is vacated, and the time, within which the submission requires the award to be made, has not ex. pired, the court may, in its discretion, direct a rehearing by the arbitrators.
$ 2375. In either of the following cases, the court, specified in the submission, must make an order modifying or correcting the award, upon the application of either party to the submission :
1. Where there was an evident miscalculation of figures, or an evident mistake in the description of any person, thing, or property, referred to in the award
2. Where the arbitrators have awarded upon a matter not submitted to them, not affecting the merits of the decision upon the matters submitted.
3. Where the award is imperfect in a matter of form, not affecting the merits of the controversy, and, if it had been a referee's report, the defect could have been amended or disregarded by the court.
The order may modify and correct the award, so as to effect the intent thereof, and promote justice between the parties.
$ 2376. Notice of a motion to vacate, modify, or correct an award, must be served upon the adverse party to the submission, or his attorney, within three months after the award is filed or delivered, as prescribed by law for service of notice of a motion upon an attorney in an action. For the purposes of the motion, any judge, who might make an order to stay the proceedings in an action brought in the same court, may make an order, to be served with the notice of motion, staying the proceedings of the adverse party to enforce the award.
$ 2377. Where the court vacates an award, costs, not