Case v. Osborn

60 How. Pr. 187

• Court: New York Supreme Court
• Decided: January 15, 1880
• Status: Published

Opinion

Smith, J.

Appeal from a judgment entered on the report of a referee. Action for work and labor. The referee found in plaintiffs’ favor for forty-seven dollars and sixty-six cents, but denied them interest on the ground that no demand was made before suit. We think he erred in not allowing interest. Plaintiff testified that he called on defendant about six weeks after the work was completed and defendant said, in substance, he would pay it when he got ready. Saw him once after that and told him he must come to plaintiffs’ shop and settle the matter, and he made no answer. This testimony is not disputed. Besides, ic is proved that the work was completed and accepted in September, 1874. Further, bringing suit was sufficient demand, and plaintiffs’ were entitled to interest from that time at least.

Judgment reversed and new trial ordered before another referee, costs to abide event.

Mullin, P. J., and Talcott, J., concur.