Bull v. Ketchum

2 Denio 188

• Court: New York Supreme Court
• Decided: February 15, 1846
• Status: Published

Opinion

By the Court, Bronson, Ch. J.

The law of 1844 gives interest on the verdict, from the time it was obtained to the time of the judgment, whichever party may have occasioned the delay. (Stat. 1844, p. 508, § 3.) But the statute does not retroact; (Bailey v. The Mayor of N. Y., 7 Hill, 146;) and this verdict was rendered before the law was enacted. At the common law, the plaintiff is only entitled to tax interest on the verdict where the delay in obtaining judgment has been ocea sioned by the defendant; and not where the plaintiff himself causes the delay. (Vredenbergh v. Hallett, 1 John. Cas. 27, Williams v. Smith, 2 Caines, 253; The People v. Caine, 1 John. 343; Lord v. The Mayor of N. Y., 3 Hill, 430, note.) Here, the defendant abandoned his bill of exceptions; and the plaintiff himself produced most of the delay, between the verdict and judgment, by moving for a new trial on the case which he made. The plaintiff was delayed by the defendant’s bill of exceptions from the 28th of March, 1844, when the cause was tried, to the 20th of June following, when the bill of exceptions was abandoned. During that period the plaintiff is entitled to interest on the verdict. But I think he could not tax interest after that time, when he was himself the sole cause of the delay. The sum taxed for interest must therefore be reduced to $38,70

The defendant asks costs on the issue which was fonhd in his favor upon the first count of the declaration. But the statute only gives the defendant costs in such cases “ when there are two or more distinct causes of action, in separate counts.” (2 R. S. 617, § 26.) Here, there was only one cause of action—the defendant’s covenant that Welty should pay and perform the conditions of the bond and mortgage which was assigned to the plaintiff. The two counts amounted to no moré than the assignment of two breaches of the covenant, both of which might have been assigned in a single count. And besides, the plaintiff was strictly entitled to a verdict on the first count, which he waived because the judge ruled against allowing any more than nominal damages. The case does not come within those to which we are referred. (Seymour v. Billings, 12 Wend. 285; Crittenden v. Crittenden, 1 Hill, 359.) This motion should be denied.

It seems to be reasonable that the defendant should have costa for opposing the unsuccessful motion which the plaintiff made for a new trial; and the case of Williams v. Smith, (2 Caines, 253,) favors the claim. But the title to costs depends upon the statute; and we have not been referred to any provision which gives costs in such a case. Although the plaintiff recovered, he was not entitled to costs on the motion for a new trial, and he has not taxed any.

The amount allowed for interest should be reduced to the sum which has been mentioned; and the defendant’s motion for costs should be denied.

Ordered accordingly.