173 N.Y. 414 | NY | 1903
In March, 1899, the plaintiffs entered into a contract with the commissioner of buildings of the borough *416 of Manhattan for tearing down the walls, removing the debris and recovering the dead bodies from the ruins of the Windsor Hotel, in the city of New York, which at that time had been recently destroyed by fire. The contract did not prescribe any gross sum to be paid for the work, but the plaintiffs were to be allowed a specific price for each item of labor or materials furnished by them, as, for instance, so much a day for shorers, so much for trucks, so much a thousand feet for timber. After the completion of the work, to wit, on June 29, 1899, the plaintiffs presented a claim for such work in excess of a hundred thousand dollars to the comptroller of the city of New York, by whom it was rejected. Thereupon this action was brought, in which the referee awarded to the plaintiffs for their work the sum of $79,229.93, with interest from the third day of May, 1899. On appeal the Appellate Division reduced the judgment entered on the report of the referee by disallowing the interest which accrued prior to the referee's report, which bore date February 15, 1901. From that judgment the plaintiffs have appealed to this court, seeking to reinstate the original judgment.
I think the action of the learned Appellate Division cannot be sustained consistently with the settled law of this state as to the allowance of interest. Ever since the cases of VanRensselaer v. Jewett (
The cases cited in the opinion of the learned Appellate Division are not in conflict with the rule laid down by Judge EARL. The principle of awarding interest has been extended to the case of unliquidated damages for breach of an executory contract of sale where the property has a market value. Gray v. CentralR.R. Co. of N.J. (
The referee erred in allowing interest from May 3, 1899, the time of the completion of the work, instead of from June 29, when the demand was made upon the comptroller of the city. This error has been discovered by the parties, and the plaintiffs have stipulated that in case interest is awarded to them, a deduction of $739.53 shall be made from the judgment given by the referee.
The judgment of the Appellate Division should, therefore, be reversed, and the judgment entered upon the report of the referee, subject to such deduction, affirmed, with costs to the appellants in the Appellate Division and in this court.
PARKER, Ch. J., BARTLETT, HAIGHT, MARTIN and WERNER, JJ., concur; O'BRIEN, J., absent.
Judgment reversed.