majority">Monell, J.

The answer in this case is, I think, sufficient both in substance and in form. The defendant seeks to avoid the award on two grounds—namely, misconduct on the part of the arbitrators, and mistake in ascertaining the amount due from the defendant to plaintiff. Such grounds were always sufficient, in equity, to' vacate and annul an award (Herrick v. Blair, 1 Johns. Ch., 101; Van Cortlandt v. Underhill, 1 Johns., 405 ; Bouck v. Wilber, 4 Johns. Ch., 405; Knox v. Symmonds, 1 Ves., 369; Corneforth v. Geer, 2 Vern., 705), and may now be set *161up as a defense to an action upon the award (Dobson v. Pearce, 12 N. Y. [2 Kern.] 156 ; New York Central Ins. Co. v. National Protection Ins. Co., 14 N. Y. [4 Kern.] 85).

The misconduct complained of, was in proceeding without notice to the defendant, and without fixing any day for the hearing of the matters submitted, and in making the award before the case was finally submitted to the arbitrators, and before the defendant had concluded his proofs. If the defendant shall be able to sustain these charges of misconduct, by proof, I think he will make out a strong case against the validity of the award, and be entitled to have it set aside. The charges of misbehavior are stronger than in any of the cases to which I have-referred.

The second defense demurred to — of mistake in the computation made by the arbitrators — is a little indefinitely stated. It does not appear what the nature of the mistake was, except that it is alleged that it was a clerical error. I think, however, it was sufficient in form, and proof may be given under it of such a mistake as the-court will recognize as sufficient to vacate the award.

The disposition I have made of the demurrer renders it unnecessary for me to decide whether the complaint states a cause of action.

The defendant must have judgment on the demurrer, with costs.

Judgment accordingly.

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