Summary
In Schaefer v. Detroit Fidelity Surety Co. (232 App. Div. 537) it was held that it was proper to charge interest against the surety upon a bond even though the sum awarded with the interest added exceeded the amount of the bond.
Summary of this case from International Railway Co. v. Town of CheektowagaOpinion
June 12, 1931.
Appeal from Supreme Court of New York County.
Isaac Hyman of counsel [ Joseph Perlstein with him on the brief], for the appellant.
Alfred A. Walter of counsel [ Walter Wolff, attorneys], for the respondent.
Plaintiff sued on a bond, and the jury's verdict was for $4,000 "plus interest from August 15, 1928." The trial justice reduced the verdict by the amount of interest.
No appeal was taken by the plaintiff from the judgment, which would bring up for review the reduction of the verdict, by the amount of the interest under plaintiff's exception thereto, as a ruling, and no order reducing the verdict by the amount of the interest was entered at Trial Term, and appeal taken therefrom. The plaintiff moved to reinstate the interest and that motion was denied, and the appeal is from the order entered thereon.
We think interest was properly allowed by the jury and followed the failure of fulfillment of the condition of the bond by the obligor to hold the obligee harmless even though the interest added exceeded the precise sum of the bond.
Section 480 of the Civil Practice Act (as amd. by Laws of 1927, chap. 623) provides that "* * * In every action now pending or hereafter brought wherein any sum of money shall be awarded by verdict, report or decision upon a cause of action for the enforcement of or based upon breach of performance of a contract, express or implied, other than a contract to marry, interest shall be recovered upon the principal sum whether theretofore liquidated or unliquidated and shall be added to and be a part of the total sum awarded." This section appears to grant interest in an action of the character of the present cause and, therefore, the court at Trial Term should have reinstated the interest amount as awarded by the jury's verdict.
The order should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.
FINCH, P.J., MARTIN, O'MALLEY and TOWNLEY, JJ., concur.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.