Schaefer v. Detroit Fidelity & Surety Co.

Appellate Division of the Supreme Court of New York

Schaefer v. Detroit Fidelity & Surety Co.

232 A.D. 537, 250 N.Y.S. 449, 1931 N.Y. App. Div. LEXIS 13876

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 12, 1931

StatusPublished

Cited by1 cases

This text of 232 A.D. 537 (Schaefer v. Detroit Fidelity & Surety Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Schaefer v. Detroit Fidelity & Surety Co., 232 A.D. 537, 250 N.Y.S. 449, 1931 N.Y. App. Div. LEXIS 13876 (N.Y. Ct. App. 1931).

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Opinion

McAvoy, J.

Plaintiff sued on a bond, and the jury’s verdict was for $4,000 “ plus interest from August 15, 1928.” The trial justice reduced the verdict by the amount of interest.

No appeal was taken by the plaintiff from the judgment, which would bring up for review the reduction of the verdict, by the amount of the interest under plaintiff’s exception thereto, as a ruling, and no order reducing the verdict by the amount of the interest was entered at Trial Term, and appeal taken therefrom. The plaintiff moved to reinstate the interest and that motion was denied, and the appeal is from the order entered thereon.

We think interest was properly allowed by the jury and followed the failure of fulfillment of the condition of the bond by the obligor to hold the obligee harmless even though the interest added exceeded the precise sum of the bond.

Section 480 of the Civil Practice Act (as amd. by Laws of 1927, chap. 623) provides that “ * * * In every action now pending or hereafter brought wherein any sum of money shall be awarded by verdict, report or decision upon a cause of action for the enforcement of or based upon breach of performance of a contract, express or implied, other than a contract to marry, interest shall be recovered upon the principal sum whether theretofore liquidated or unliquidated and shall be added to and be a part of the total sum awarded.” This section appears to grant interest in an action of the character of the present cause and, therefore, the court at Trial Term should [538]*538have reinstated the interest amount as awarded by the jury’s verdict.

The order should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Finch, P. J., Martin, O’Malley and Townley, JJ., concur.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.

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McAvoy, J.

Plaintiff sued on a bond, and the jury’s verdict was for $4,000 “ plus interest from August 15, 1928.” The trial justice reduced the verdict by the amount of interest.

No appeal was taken by the plaintiff from the judgment, which would bring up for review the reduction of the verdict, by the amount of the interest under plaintiff’s exception thereto, as a ruling, and no order reducing the verdict by the amount of the interest was entered at Trial Term, and appeal taken therefrom. The plaintiff moved to reinstate the interest and that motion was denied, and the appeal is from the order entered thereon.

We think interest was properly allowed by the jury and followed the failure of fulfillment of the condition of the bond by the obligor to hold the obligee harmless even though the interest added exceeded the precise sum of the bond.

Section 480 of the Civil Practice Act (as amd. by Laws of 1927, chap. 623) provides that “ * * * In every action now pending or hereafter brought wherein any sum of money shall be awarded by verdict, report or decision upon a cause of action for the enforcement of or based upon breach of performance of a contract, express or implied, other than a contract to marry, interest shall be recovered upon the principal sum whether theretofore liquidated or unliquidated and shall be added to and be a part of the total sum awarded.” This section appears to grant interest in an action of the character of the present cause and, therefore, the court at Trial Term should [538]*538have reinstated the interest amount as awarded by the jury’s verdict.

The order should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Finch, P. J., Martin, O’Malley and Townley, JJ., concur.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.

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Bluebook (online)

232 A.D. 537, 250 N.Y.S. 449, 1931 N.Y. App. Div. LEXIS 13876, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schaefer-v-detroit-fidelity-surety-co-nyappdiv-1931.

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