A. M. Hazell, Inc. v. City of Long Beach

Per Curiam. By a fair construction of the contract, article XLIII constitutes an exception to the rule as to the time of payment prescribed by article XLI and imposes on the defendant a duty to make payment from time to time to the extent of eighty-five per cent of the value of the work done and materials furnished as established by intermediate certificates. This reading of the contract is in accord with the practical construction indicated by the conduct of the parties. *203 Demand for payment was made on November 26, 1928, in respect of the installments then due, and informally thereafter, through correspondence and otherwise, as to installments subsequently accruing. The debt being established, interest from the date of the demand (Sweeney v. City of New York, 173 N. Y. 414) follows as an incident. The judgment of the Appellate Division should be modified by striking out the provision that interest on the sum of $135,536.23 shall be computed from May 11, 1929, and by adding interest as follows: on $76,441.44 from November 26, 1928, and on the later installments as prayed for in the complaint, and as so modified the judgment should be affirmed with costs to the appellant. Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ., concur. Judgment accordingly.