Opinion
March 3, 1952.
Present — Nolan, P.J., Carswell, Adel, Wenzel and Schmidt, JJ.
In an action to establish a mechanic's lien and to recover damages for breach of contract, defendant Marcam Contracting Co., Inc., appeals from an order granting plaintiff's motion for partial summary judgment with respect to the cause of action to establish the mechanic's lien, and from the judgment entered in pursuance of said order. Order and judgment modified on the law and the facts by providing that interest upon the amount of the judgment be computed from the 2d day of July, 1951, instead of from the 31st day of May, 1951. As so modified, the order and judgment are unanimously affirmed, with a single bill of $10 costs and disbursements in favor of plaintiff-respondent and against appellant. Interest may not be computed from the date on which it is claimed that the contract was breached, for the breach has not as yet been established. ( Freedman v. Hart Early Co., 162 Misc. 487.) Accordingly, interest may not be computed from a date earlier than the date of the service of the summons. ( Manufacturers Trust Co. v. Gray, 278 N.Y. 380; Freedman v. Hart Early Co., 162 Misc. 487, supra.)