Opinion of the Court, per RUGER, Ch. J. the other by the difference between the value of the property as represented upon the sale and its actual value. If we apply the test as to whether the same evidence is required to support both actions, it will be seen that they are not the same. (Rice v King, 7 Johns. 20.) In the one case the recovery is based upon the express liability assumed by the party in his contract, and in the other upon the liability incurred for a violation of the duty of honesty and fair dealing which the law enjoins upon one in his dealings with another. It is true that in the event that the property sold is utterly worthless the amount of damage might be the same in both cases; but this would be a mere accidental coincidence, and would not affect the general rule by which the actions are distinguished. The party injured can, however, recover but one satisfaction for the damages suffered; no matter how many actions he may be entitled to prosecute for their recovery. A different question would have been presented had the plaintiff first recovered judgment for the entire amount guaranteed to be paid by the defendant, and had then sought to maintain this action. As such a judgment would have covered the entire damage that could be occasioned by the transaction in question, it would necessarily include both the damages inflicted by the fraud as well as those resulting from the breach of contract. In such a case the court might possibly restrain the prosecution of an action to recover for an amount which might be presumed to have been merged in the judgment already obtained. (Cormier v. Hawkins, 69 N. Y. 190.) But that question is not presented by this case. Here judgment has been obtained for a portion only of the defendant's contract liability, and it possibly may cover a portion of the liability which he has incurred by reason of his fraud, but it does not necessarily do so, and certainly does not at all indicate the extent of the damage finally recoverable in either form of action, and hence is not a recovery upon the same cause of action. The several causes of action stated by the plaintiff are con- 31 1 Statement of case. sistent, and co-exist independent of each other, and upon settled principles are each maintainable until satisfaction of the whole damage is finally obtained either in one form or another. (Allaire v. Whitney, 1 Hill, 484.) When such satisfaction has been obtained, the judgments, however numerous they may be, will be ordered satisfied by the court upon the application of the defendant as in the case of several judgments recovered for damages occasioned by the same wrong against several joint tort feasors. (Corn Exchange Ins. Co. v. Babcock, supra.) The order should, therefore, be affirmed, and judgment absolute ordered against defendant upon his stipulation, with costs. MILLER, EARL and FINCH, JJ., concur. RAPALLO, J., concurs, on the ground that the recoveries heretofore had only relate to the first two installments, and that this action can be maintained for the recovery of damages in respect to the amounts of the subsequent installments. ANDREWS, J., concurs in result. DANFORTH, J., dissents. Order affirmed and judgment accordingly. 95 242 111 316 JAMES MCNULTY, Appellant, v. JOHN R. SOLLEY, Respondent. The submission of a cause of action to arbitrators is in legal effect a dis- After such a submission the defendant is entitled, on motion, to an order Elliott v. Quimby (13 N. H. 183), Chapman v. Seccomb (36 Me. 103), disapproved. At the time such a submission was executed the cause was on the trial calendar; thereafter, on application of plaintiff's counsel, the Circuit judge ordered the cause set down for trial for a day named. Held, that by omitting to appeal from such order defendant did not waive the submission; that, as it did not appear that he assented thereto, or participated in the proceeding, it could not operate to his prejudice. (Argued February 26, 1884; decided March 4, 1884.) Statement of case. APPEAL from order of the General Term of the Supreme Court, in the first judicial department, made December 1, 1853, which affirmed an order of Special Term discontinuing the action. (Reported below, 31 Hun, 17.) The facts sufficiently appear in the opinion. Samuel C. Mount for appellant. The proposition to arbitrate, with the refusal of the arbitrators to accept the proposition, was insufficient to withdraw the cause from the court to another tribunal. (Morse on Arbitrations, 80; Chapman v. Seecomb, 36 Me. 102; Elliott v. Quimby, 13 N. H. 183; Woolley v. Clark, 2 D. & Ry. 158; Haggart v. Morgan, 5 N. Y. 422; Harper v. Abraham, 4 Moore R. of Cases in Com. Pleas & Exchequer Chambers, 3.) Even an agreement to arbitrate, accepted by the arbitrators, does not divest the court of its whole jurisdiction of the cause. (Douglas v. Kenton, 1 Miles, cited; Morse on Arbitration, p. 77; Com. Dig. tit. Courts, p. 2, Conusance of Pleas; Camell v. Clavering, 2 Ld. Raym. 789; Tidd's Practice [9th ed.], 822.) The court erred in refusing to take into consideration the question of the intent of the parties as to whether the matters should operate as a discontinuance of the suit or not, even though the paper on its face appeared to be an agreement to arbitrate. (Story's Eq. Juris., § 1457; Hirch v. Litchfield, 39 N. Y. 379.) The proposition is defective as a written submission to arbitration, because it was not acknowledged or certified in like manner as a deed to be recorded. (Code of Civil Procedure, § 2366; Bulson v. Lohnes, 29 N. Y. 291; Fairchild v. Gwinne, 16 Abb. Pr. 23; Randell v. Dusenbury, 39 Sup. Ct. 177; Adams v. Houghton, 3 Abb. Pr. [N. S.] 46 ; Inhab. Deerfield v. Arms, 37 Mass. 480.) Samuel Hand for respondent. The submission was a general one, and had the effect of discontinuing the action. (Wilson v. Williams, 66 Barb. 209; Ressequie v. Brownson, 4 id. 541; Keep v. Keep, 17 Hun, 153; Jordan v. Hyatt, 3 Barb. 275; Larken v. Robbins, 2 Wend. 505.) The submission was Opinion of the Court, per DANFORTH, J. good, although not acknowledged. (Code of Civil Procedure, 2386; Cutler v. Cutler, 43 N. Y. Supr. Ct. 472, 473.) The practice pursued by the defendant of moving for an order of discontinuance was the right course. (Smith v. Barse, 2 Hill, 390; Lorillard v. Phila. Steam Co., 1 Law Bulletin, 12.) DANFORTH, J. After issue, while the action was pending and on the trial calendar, the parties, under the advice of certain persons styled a committee, executed an agreement in these words: "New York, April 27, 1883. Mr. McNulty named Saml. Shethar, Mr. Solley named E. V. Connett; the committee named H. M. Silverman." 66 'We, the undersigned, hereby agree to leave our differences to the above named parties, Shethar, Connett and Silverman, as arbitrators, whose decision shall be final." Afterward the plaintiff's counsel had the cause set down for trial at the Circuit for the 16th of May, 1883. On the 10th of May the defendant, on an affidavit showing these facts, obtained an order from a judge of the Supreme Court requiring the plaintiff to show cause why the action should not be discontinued. In answer to the order the plaintiff made it appear by his affidavit that since signing the paper no action had been taken by either of the persons named as arbitrators, they having been selected without their knowledge or previous consent;" that one of them, Mr. Shethar, having since been asked by the plaintiff to consent to act, "absolutely refused to do so." The court granted the motion and declared the action to be discontinued. The General Term have affirmed that order. The rule is well settled that mere submission to arbitration is a discontinuance of the suit. (Camp v. Root, 18 Johns. 22; Ex parte Wright, 6 Cow. 399; Smith v. Barse, 2 Hill, 387; Bank of Monroe v. Widner, 11 Paige, 529, 533; Ressequie v. Brownson, 4 Barb. 541; Wilson v. Williams, 66 id. 209; People, ex rel. Van Cortlandt, v. Onondaga Common Pleas, 1 Wend. 314.) In Larkin v. Robbins (2 Wend. 505) it was held that this Opinion of the Court, per DANFORTH, J. was so although the arbitrators had not taken or consented to take upon themselves the burden of the submission, or done any act under it. It is sufficient, says MARCY, J., "that the parties have selected these arbitrators and concluded their agreement to submit to them. It is this agreement which withdraws the cause from the court and effects a discontinuance of the suit." The submission is eo acto a discontinuance (Ressequie v. Brownson, supra), and such would be its effect although it had been immediately revoked. (Smith v. Barse, supra.) The ground upon which the doctrine rests is that the parties have selected another tribunal-one of their own creation-to settle the controversy, and they thereby agree to, and do withdraw the cause from the court. In Buel v. Dewey (22 How. Pr. R. 342) the rule is said to apply although the arbitrators fail or refuse to take upon themselves the duty of the submission. There is no injustice in this rule. It was in the power of the parties either to ascertain beforehand whether the persons named would accept the office of arbitrators, or to so qualify their agreement as to make it conditional on their acceptance, or that proceedings in the suit should only be stayed until an award made, or no longer than a specified time and then cease to be of effect unless an award was made. But neither of these things was done, and we think the general law was properly applied by the court below, and that the defendant was entitled to the relief he sought by motion. (Wells v. Lain, 15 Wend. 99; Coleman v. Wade, 2 Selden, 44.) Cases are cited by the learned counsel for the appellant from the courts of other States (Elliott v. Quimby, 13 N. H. 183; Chapman v. Seccomb, 36 Me. 103), to the effect that the assent of the arbitrators is a condition precedent to the taking effect of the agreement for submission. But in this State the rule to the contrary seems to be too firmly established to be disturbed; and when the submission, as in this case, is the voluntary act of the parties, in words chosen by themselves, the court is not at liberty to add any thing which requires their consent, or look beyond the paper to discover their intent. The legal |