Salter v. . Utica Black River Railroad Co.

Andrews, J. The act of 1870 (Chap. 78,) declares that the amount of damages recovered in actions for compensation for causing death by wrongful act, neglect or default, “ shall draw interest from the time of the death of such deceased person, which interest shall be added to the verdict and inserted in the entry of judgment in such action.” We think that under this statute, the rate of interest, is governed by the statute regulating interest, in force when the damages are ascertained by verdict. The right to interest then accrues, and relates back to the time of the death. But the rate of interest on the damages, liability for which is then first established, and the amount of which is until that time uncertain and unliquidated, is the rate which the statute then prescribes. The proviso in the first section of the act of 1879 (Chap. 538), that “ nothing herein contained shall be construed as to in any way affect any contract or obligation made before the passage of the act,” was intended to preserve rights under contracts, or contract obligations, existing when the act was passed, and does not, we think, affect the question in this case. The previous part of the section prescribes, that the rate of interest upon the loan or forbearance of money, goods, or things in action shall be six per cent, etc. The proviso excepts an obligation made before the passage of the act. This language is inappropriate to designate a liability for a tort, created by law, and not by the agreement of parties, express or implied. The question has been decided adversely to this view in the first department (Erwim, v. The Neversink Steamboat Co., 23 Hun, 578), but we think the view taken by the fourth depart *404 ment in this case, is best supported by reason, and by the rule in cases somewhat analogous. (Sup’rs of Onondaga v. Briggs, 3 Den. 173.) We also concur with the General Term, in respect to the right of the plaintiff to tax the disbursements for printing, at the amount paid, there being no evidence that the sum charged was fraudulently or eollusively exaggerated, or more than the usual charge at the place of the plaintiff’s residence, for such services. Both parties having failed in their respective appeals, the order should be affirmed, without costs. . All concur. Order affirmed.