Muscolino v. Keppel

17 A.D.2d 776, 232 N.Y.S.2d 569, 1962 N.Y. App. Div. LEXIS 7869

Opinion

Judgment unanimously modified by reducing the item of damages representing interest to interest calculated from October 28, 1959, to date of judgment, and, as so modified, affirmed, with costs to respondent. Interest as an item of damages began to run against defendant surety from the date when it became obligated to pay on its surety bond. That date was when the arbitrators determined the liability of the principal, namely, October 28, 1959. The award of interest from the date of the principal’s breach was erroneous, as on that date there was no determination of the amount due, nor any way of fixing the amount of liability which was, to a large extent, dependent on after-occurring events. Furthermore, the demand in the complaint is for interest from the later date. Settle order on notice. Concur •—Botein, P. J., Valente, McNally, Eager and Steuer, JJ.