¶1The order appealed from was not made in any action. The proceeding in which it was made was an arbitration proceeding under the statute. Section 121 of the Code has no application to the question of the power of the justice at special term to make the order. That section only authorizes such an order in an action.
¶2The Code does not affect arbitration proceedings under the statute. {Code, § 471.)
¶3The arbitration proceeding was a statutory proceeding, and this court had no power over it, and had no power to make any order in it, except such as is given or recognized by the statute. The statute (§ 22) declares that nothing contained in it “ shall be construed to impair, diminish, or in any way affect the power and authority of the Court of Chancery over arbitrators, awards, or the parties thereto,” &c. This court is now vested with the chancery power or jurisdiction recognized by this section; but it can hardly be claimed that.the justice at special term had jurisdiction to make the order under the equity power recognized by this section.
¶4I have looked in vain into the statute for authority for the order.
¶5The court has express statutory power to confirm, or to vacate, or modify the award (§§ 9, 10, 11, &e.) on the application of any party to the submission; but I find no power given to the court to revive the proceeding in case of the death of a party, or to substitute another party in the place of a deceased party.
¶6I think the order must be reversed, but I think it should be reversed without costs; for there is considerable doubt whether Manning had any right to bring the- question here by appeal.
¶7After the order substituting him in place of Pratt, Borst had taken an appeal from the order vacating the award, and the two appeals were heard together; the following opinion being rendered upon the latter:
¶8It follows from our decision on the appeal from the order substituting Borst in the place of Pratt, deceased, that this appeal from the order vacating the award, must be dismissed; for as a consequence of that" decision Borst has no right to prosecute this appeal, and no one has appeared before us who has.
¶9But I think the appeal should be dismissed, without costs.
¶10Ingraham, P. J., and Clerks, J., concurred in these opinions.
¶11Orders accordingly.