FIRST DEPARTMENT, MAY TERM, 1874. as it did when the decree itself was pronounced against him. For these reasons, as well as those mentioned by Justice DONOHUE, in his opinion, the order made should be affirmed, with costs. DAVIS, P. J., and BRADY, J., concurred. Order affirmed, with costs. HENRY JACOBY, RESPONDENT, v. DAVID JOHNSTON AND ANOTHER, APPELLANTS. Submission to arbitration — when it operates as a discontinuance of an action— stay of proceedings. After the commencement of this action, an agreement, under seal, was entered into by all the parties thereto, to “submit all matters involved in said action, and presented by the pleadings therein, to the hearing, determination and decision of three arbitrators," and "that the action in the Supreme Court aforesaid, and all proceedings therein, or in relation thereto, shall be stayed pending the award of said arbitrators;" held, that the submission would have effected a discontinuance of the action but for the clause providing for a stay of proceedings; that this operated as a perpetual stay until the making of the award, which would at once effect a final discontinuance of the action. APPEAL from an order made at Special Term, denying a motion made by the defendants for an order discontinuing the action and striking the case from the circuit calendar. This action was commenced to recover of the defendants damages for an alleged wrongful entry upon certain lands of the plaintiff, and removing therefrom trees, timber, etc. After issue was joined, an agreement, under seal, was entered into by all the parties, submitting all matters involved in said action, and presented by the pleadings therein, to the hearing, determination and decision of three arbitrators. The agreement afterwards provided, "that the action in the Supreme Court aforesaid, and all proceedings therein, or in relation thereto, shall be stayed pending the award of said arbitrators." Subsequent to entering into the agreement, the plaintiff noticed the action for trial, and put it upon the circuit calendar. The defendants moved the Special Term for an order discontinu FIRST DEPARTMENT, MAY TERM, 1874. ing the action, and striking it from the circuit calendar. This motion was denied, and from the order thereon, the defendants appealed. J. A. Thompson, for the appellants. for the respondent. DAVIS, P. J.: The submission to arbitration of the subject-matter of this action, was full and absolute. Its effect would have been a discontinuance of the action, but for the clause making special provision in relation to the action. That clause provides, "That the action in the Supreme Court aforesaid, and all proceedings therein or in relation thereto, shall be stayed pending the award of said arbitrators." The stay of proceedings thus provided for, indicates an intention not to have the submission operate as an absolute discontinuance, as otherwise it would have done. It does, however, operate as a perpetual stay" pending the award," which must be construed to mean until the award is made. The making of the award, in the absence of any stipulation for the entering of judgment upon the same in the action, would at once operate as a final discontinuance of the suit; so that, practically, while the submission remains in force, the suit in court is completely suspended. Neither party has revoked the submission. A revocation, to put an end to the submission, must be made with the same formality as the submission itself. The submission being in writing and under seal, it must be revoked with like solemnity.* The effect of the submission, while remaining in force, is to stay, absolutely, all proceedings in the suit. The plaintiff was not, therefore, at liberty to take any steps in the action, after the submission. The motion to discontinue, under the circumstances, was properly denied, but the cause *Van Antwerp v. Stewart, 8 John., 125; Howard v. Cooper, 1 Hill, 44; Robertson v. M'Neil, 12 Wend., 578, 582. Larkin v. Robbins, 2 Wend., 505; Camp v. Root, 18 John., 22; Jordan v Hyatt, 3 Barb.,.275; Wells v. Lain, 15 Wend., 99; Van Slyke v. Lettice, 6 Hill, 610; 11 How., 355. FIRST DEPARTMENT, MAY TERM, 1874. should have been stricken from the calendar, under the stay of proceedings. The order appealed from, should be modified so as to deny the motion for discontinuance, and grant that part asking that the case be struck from the calendar, and, as so modified, affirmed, without costs. DANIELS and BRADY, JJ., concurred. Order as modified affirmed, with costs. GEORGE KUHN, APPELLANT, v. WARREN G. BROWN, CHARLES W. ALCOTT, CHARLES C. WEHRUM AND ALFRED LOCKWOOD, RESPONDENTS. Statute of frauds. The plaintiff sold to defendant, Lockwood, a $20,000 bond and mortgage, and assigned to him, at the same time, a $2,000 bond and mortgage, as collateral security thereto. At the same time, the plaintiff and the defendant, Alcott, executed an agreement, under seal, by which, after reciting that the plaintiff was indebted to the defendant, Wehrum, in the sum of $2,000, and that the defendant, Alcott, had become security for the payment of said money, it was agreed that Lockwood should hold the $2,000 mortgage, after payment of the $20,000 mortgage, to secure Alcott for his liability as security. Held, that this was a sufficient memorandum within the statute of frauds; that the defendant, Alcott, thereby became security to Wehrum for plaintiff's debt to him; and that he was entitled to the proceeds of the $2,000 mortgage. APPEAL from a judgment in favor of the defendants. The plaintiff, on the 6th of August, 1869, sold to the defendant, Lockwood, a bond and mortgage for $20,000, and at the same time assigned to him, as collateral security for the payment of the said mortgage, a bond and mortgage for $2,000, known in this case as the Kreitz mortgage. In May, 1869, the plaintiff being indebted to the defendant, Wehrum, in the sum of $7,066.35, it was agreed between them that Wehrum should take $2,000 therefor, provided the defendant, Alcott, would become collateral security for the payment of said sum, and Alcott thereupon said that he would FIRST DEPARTMENT, MAY TERM, 1874. become such security. This was all by parol, and was not reduced to writing and subscribed by Alcott, but an entry was made in his books, which, it was intended, should relate thereto. At the time of the assignment of the Kreitz mortgage to the defendant, Lockwood, the following agreement was executed by the plaintiff and the defendant, Alcott: Whereas, George Kuhn, of Mott Haven, Westchester county, New York, is indebted to Charles C. Wehrum, of the city of New York, in the sum of $2,000, payable on the 1st of May, 1870, without interest; and whereas, Charles W. Alcott has become and is security to the said Wehrum for the payment of the said $2,000 on the said 1st day of May, 1870; and whereas, the said Kuhn has assigned to Alfred Lockwood, of the city of Paris, France, a certain bond and mortgage made by William Kreitz to said Kuhn, to secure $2,000, said mortgage being recorded in the register's office of the city of New York, in liber 931 of mortgages, page 19, said assignment to said Lockwood being security to said Lockwood upon the assignment of a $20,000 bond and mortgage made by said Alcott to said Kuhn, and by said Kuhn to said Lockwood. Now, therefore, in consideration of one dollar, it is agreed that said Lockwood may hold said $2,000 mortgage, to secure said Alcott for his liability as security as aforesaid, and for that purpose he may, after the payment of said $20,000 bond and mortgage, assign said $2,000 bond and mortgage to said Alcott, to secure him for being such security as aforesaid, or to indemnify or repay to him the amount which he may pay, as such security, on or after May 1, 1870, and said Alcott agrees to use his exertions to induce said Lockwood to surrender said $2,000 bond and mortgage, and accept other securities in the place of it whensoever said $2,000 bond and mortgage shall be paid, if paid before maturity, so that the said $2,000 may be paid to said Kuhn. NEW YORK, Aug. 6, 1869. Witness: WARREN G. BROWN. JU. 8. Rev. Stamp, 15 cents, canceled. GEORGE KUHN. [L. s.] FIRST DEPARTMent, May Term, 1874. The Kreitz mortgage was paid to Lockwood, in November, 1869. At the time of the commencement of this action, there was about $10,000 due on the mortgage sold to Lockwood, and at the time of the trial, about $400. The plaintiff brought this action to recover from Lockwood the proceeds of the Kreitz mortgage, and, at the trial, he tendered to him the whole amount due on the $20,000 mortgage. The case was tried before Mr. Justice BRADY without a jury, and a judgment was entered, by which it was adjudged that the defendant, Alcott, was legally liable as guarantor of the debt of the plaintiff to Wehrum, and the defendant, Lockwood, ordered, after the $20,000 bond and mortgage should have been fully paid, to pay over the proceeds of the $2,000 mortgage to the defendant, Wehrum. From this judgment the plaintiff appealed. The following opinion was delivered by Mr. Justice BRADY at the Special Term: BRADY, J.: The question presented in this case, although not free from difficulty, is, nevertheless, to be determined on general principles. The statute of frauds requires that every special promise to answer for the debt, default or miscarriage of another person, shall be void, unless some note or memorandum of the agreement, be in writing and subscribed by the party to be charged, and the decisions which have been made, declare that the agreement or memorandum, when made, shall be sufficiently explicit to show the obligation assumed, either by its own terms or other memoranda connected with it, and of which it is a part. Prior to the substitution in our statute, of the word "subscribed" for the word "signed," the name of the promisor at any place upon the memorandum, was held to be a compliance with its terms, but now the subscription must be at the foot of the agreement, which contains the engagement made. It has also been held, and the law has not been changed, that it is sufficient to meet the requirements of the statute, if the memorandum be signed by the party to be charged. These principles are so familiar, that it is not considered necessary to refer to the authorities. In this case, after the parties had met, and the defendant, Alcott, had verbally assumed to pay the plaintiff's debt to Wehrum, a memorandum was made in Alcott's books |