D. W. Winkelman Co. v. State

10 A.D.2d 894 | N.Y. App. Div. | 1960

Judgment unanimously modified upon the law and facts to provide that claimant recover against the State of New York interest on the severed sum of $208,981.63 from March 13, 1956 to July 9, 1956 and, as to modified, affirmed, without costs of this appeal to either party. Memorandum: Upon this record, we find that the award in the sum of $120,000 for breach of contract was proper, but the interest on the original contract balance should be modified. The work under the contract 'between the parties to this proceeding was accepted by appellant on December 20, 1955. The State on March 13, 1956 sent to respondent the final agreement and estimate which was returned unsigned on April 27, 1956. The claim for breach of contract was filed on June 1, 1956 and on July 9, 1956 the claimant moved to amend its claim by adding thereto the sum of $208,981.63 — the amount of the final estimate. The motion was granted and an order of severance granted awarding claimant judgment for the amount of the final estimate, the interest thereon, if any, to be determined upon the trial. Ho proof upon this phase of the case was submitted upon the trial but the court found that claimant was entitled to interest on the severed sum from the date of acceptance of the work to the date of payment. Upon this appeal the respondent in substance concedes that the interest should be computed from'a date 60 days after acceptance of the work, which would allow the State 60 days’ grace from the accepted performance of the work (cf. Rusciano & Son Corp. v. State of New York, 278 App. Div. 999). However, we find in this record no proof as to whether the period of 60 days was reasonable or unreasonable (cf. Rusciano & Son Corp. v. State of New York, 201 Misc. 690, 705). We conclude that interest upon the severed sum should be computed from March 13, 1956 — the date appellant sent to respondent the final agreement and estimate. (Appeal from judgment of Court of Claims for claimant on a claim for breach of a highway construction contract.) Present — Williams, P. J., Bastow, Goldman, Halpern and McClusky, JJ. [17 Misc 2d 418.]