27 N.Y.S. 323 | New York Court of Common Pleas | 1894
In an action for $52, the price of goods sold and delivered, the defendant challenged an item of $2.50, which the jury disallowed, and returned a verdict of $49.50 for the plaintiff. The recovery being for less than $50, the costs, $68.62, were credited to the defendant; and, the $49.50 being deducted from that amount, judgment was entered for the defendant in the sum of $19.12. Upon the return of the jury to render their verdict, but before it was announced, the court was requested, and declined, to instruct the jury that the plaintiff was "entitled to recover interest upon whatever amount they might find.” Again, after the rendition of the verdict, but before the discharge of the jury, plaintiff’s counsel asked the court to direct the jury “to add interest from whatever date they may find the plaintiff is entitled to interest upon that amount,” and this request, too, the court rejected. To both rulings the appellant duly excepted. That, of absolute right, the plaintiff was entitled to interest on the amount of his recovery, we had supposed to be too plain a proposition of law to be mistaken even in the hurry of nisi prius proceedings. Dana v. Fiedler, 12 N. Y. 40; Andrews v. Durant, 18 N. Y. 496, 502; McCormick v. Railroad Co., 49 N. Y. 304; Brennan v. Annuity Co., 4 Daly, 296; Mansfield v. Railroad Co., 114 N. Y. 331, 336, 21 N. E. 735, 1037. 27o time of payment for the goods being specified, the price was payable immediately on delivery, and carried interest from that moment. Chester v. Jumel, 125 N. Y. 237, 254, 26 N. E. 297. A bill was sent with the goods, (September 6, 1890,) and thus, for another reason, interest ran from the time of delivery. Mackovsky v. Railway Co., 11 N. Y. St. Rep. 649. But, as the complaint claims interest only from October 3d, perhaps it should not be recovered beyond that period. In its opinion at general term the court below says:
“The jury had the right to allow the amount claimed or any smaller amount. It is quite possible that they did not intend the plaintiff should recover a larger .verdict, including interest.”
Indisputably, if the plaintiff was entitled to a verdict, he was entitled to recover at least $49.50; and nothing in the pleadings or proofs authorized a verdict in his favor for any smaller sum, exclusive of interest.
In denying the motion for a new trial the learned trial judge seems to found his decision on two grounds: That there was no proof of interest, and that by disallowing interest, and so throwing the costs on the plaintiff, suitors would be admonished not to vex the city court with trivial litigations. In Brennan v. Annuity Co., 4 Daly, 296, 297, we said:
“Interest Is a mere incident to the principal claim, and in law is entirely certain. No fact is to be proved in respect of it, and its computation is a mere clerical act that may be performed on the trial by the judge, or referred to the clerk or jury.”
