Binsse v. Wood

New York Supreme Court

Binsse v. Wood

47 Barb. 624, 1866 N.Y. App. Div. LEXIS 151

DecidedNovember 5, 1866

StatusPublished

This text of 47 Barb. 624 (Binsse v. Wood) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Binsse v. Wood, 47 Barb. 624, 1866 N.Y. App. Div. LEXIS 151 (N.Y. Super. Ct. 1866).

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Opinion

By the Court, Clerke, J.

The appointment of Loucks, as arbitrator, was in exact conformity with that portion of the lease which provided for the inability of Burrowes, or his refusal to act. Wright, the defendant’s principal, made it; because Burrowes was unquestionably unable to act. It was admitted, at the trial, that he had gone to Europe on the 5th of January, 1855, and had not since returned.

Ho notice to the surety, of the appointment of the substituted arbitrator, or of the proceedings under the arbitration, was necessary. The principal had notice of the latter ; and that was sufficient. The arbitration was regularly conducted; the final decision was' properly read in evidence; and, the defendant having introduced no countervailing evidence, there was nothing to do but for the jury to render a verdict. They found $12,245.55, being the amount claimed, $10,000, to which the defendant limited his liability, in his agreement, and $2,245.55, the interest on said amount from the 8th day of J anuary, 1854, to the date of the verdict. The amount of rent claimed was for fifty-three days ($6969.83,) the excess was for interest thereon, from the above mentioned date. But I am inclined to think that the surety is liable for interest only from the 23d of January, 1857, the date of the decision of the arbitrators. The liability of the principal was only then fixed, by the express terms of the lease; and the "surety can only be liable for interest from that time.

I am of opinion, therefore, that the verdict should be set aside, unless the plaintiff consents to reduce the verdict to $6,969.83, and interest thereon from January 23d, 1857.

There should be no costs of the appeal.

Clorke, Ingraham and Sutherland, Justices.]

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By the Court, Clerke, J.

The appointment of Loucks, as arbitrator, was in exact conformity with that portion of the lease which provided for the inability of Burrowes, or his refusal to act. Wright, the defendant’s principal, made it; because Burrowes was unquestionably unable to act. It was admitted, at the trial, that he had gone to Europe on the 5th of January, 1855, and had not since returned.

Ho notice to the surety, of the appointment of the substituted arbitrator, or of the proceedings under the arbitration, was necessary. The principal had notice of the latter ; and that was sufficient. The arbitration was regularly conducted; the final decision was' properly read in evidence; and, the defendant having introduced no countervailing evidence, there was nothing to do but for the jury to render a verdict. They found $12,245.55, being the amount claimed, $10,000, to which the defendant limited his liability, in his agreement, and $2,245.55, the interest on said amount from the 8th day of J anuary, 1854, to the date of the verdict. The amount of rent claimed was for fifty-three days ($6969.83,) the excess was for interest thereon, from the above mentioned date. But I am inclined to think that the surety is liable for interest only from the 23d of January, 1857, the date of the decision of the arbitrators. The liability of the principal was only then fixed, by the express terms of the lease; and the "surety can only be liable for interest from that time.

I am of opinion, therefore, that the verdict should be set aside, unless the plaintiff consents to reduce the verdict to $6,969.83, and interest thereon from January 23d, 1857.

There should be no costs of the appeal.

Clorke, Ingraham and Sutherland, Justices.]

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Bluebook (online)

47 Barb. 624, 1866 N.Y. App. Div. LEXIS 151, Counsel Stack Legal Research, https://law.counselstack.com/opinion/binsse-v-wood-nysupct-1866.