§ 7505.Powers of arbitrator

This section is derived in part from CPA § 1456. It also covers the power to administer oaths formerly in CPA § 358. See also CPLR § 2309.

CPA § 1456 gave arbitrators the power to compel the attendance of witnesses and also invested them with “the same powers with respect to all the proceedings before them which are conferred upon a board or a member of a board authorized by law to hear testimony.” The quoted phrase did not have reference to any comprehensive set of powers possessed by a board. There was no provision in the civil practice act or elsewhere in the laws of this state in which powers generally enjoyed by boards were set forth. An examination of the legislative history of CPA § 1456 indicates that the powers of a board contemplated by that provision related solely to the issuance of subpoenas. The reference to powers of a board thus seems to be only an implementation of the power to compel the attendance of witnesses.

Section 2370 of the Code of Civil Procedure, from which CPA § 1456 was derived, gave arbitrators only those powers conferred upon a board “by the provisions of title second of chapter ninth of this act.” The latter title is devoted exclusively to subpoena power. In transferring § 2370 to the civil practice act, only three changes were made; each was a minor language amendment occasioned solely by the organization of the act: the word “title” was twice changed to “article” and the phrase “by the provisions of title second of chapter ninth of this act” was deleted. Although new provisions (§§ 418 to 429, later enacted as §§ 403 to 414) which corresponded to the former “title second of chapter ninth” were included, no cross-reference to them replaced the deleted phrase. In a brief note referring to the source of § 1456 (then 1430), the Joint Legislative Committee made no reference to any intended substantive change, stating in fact that the portion of that section giving arbitrators the same power as boards “is Code § 2370.” Report of the Joint Legislative Committee on the Simplification of the Civil Practice 675 (April 1919).

It should be noted that the provision of § 2370 of the Code of Civil Procedure was itself unnecessary, for arbitrators were expressly granted the same powers as boards in “title second of chapter ninth.” Section 854 of that title, corresponding to CPA § 406, specifically listed arbitrators, along with boards, as a class empowered to issue subpoenas to compel the attendance of witness and in proper cases to have such witnesses bring with them books or papers. Nowhere else in the title were boards given broader subpoena power than arbitrators.

While CPLR § 2302 confers the subpoena power upon arbitrators (as “person[s] authorized by law to receive evidence”), § 2309(a) grants them the power to administer oaths (as “person[s] authorized by the laws of this state to receive evidence”) and rule 3113(a)(1) allows arbitrators to take depositions (as “person[s] authorized by the laws of the state to administer oaths”), these powers are restated here in order to conveniently group provisions dealing with arbitration. This article, unlike the former sections, does not grant these powers to arbitrators chosen for common law arbitration. If the parties desire that they have these powers, they can easily conform with the new statute instead of proceeding under the common law.

Add, L 1962, ch 308, eff Sept 1, 1963.