Tunnell v. Tunnell

6 A.D.2d 1036, 178 N.Y.S.2d 687, 1958 N.Y. App. Div. LEXIS 4553

Opinion

It appears from the record that the plaintiff consented to the withholding of her salary payments so that the defendant misfit use the money in his business. Therefore, the sum involved was not payable to plaintiff until her demand therefor. But there was no proof of any express arrangement as to the payment of interest on the loan. On the other hand, the testimony and documentary proof permit only of the inference that the agreement did not contemplate the payment of interest. Since no demand was made prior to the commencement of this action,, interest should not have been awarded for the period prior thereto. We have considered the other assignments of error and find they are without substance. Accordingly, the judgment should be modified so as to reduce the amount of interest from $7,463.10 to $.1,910.80, being the interest on the verdict from October 29, 1956 to November 18, 1957, thus reducing the judgment to $32,160.80, and, as so modified, affirmed, without costs. Settle order. Concur — Breitel, J. P., Rabin, Valente, McNally and Bastow, JJ.