Excelsior Terra Cotta Co. v. . Harde

Gray, J. I think that the reduction as to interest was right. The plaintiff’s claims were, under the circumstances, unliquidated. They were, in fact, upon gua/ntum meruit. The finding of the trial court established that the claim under the contract was subject to a reduction, because of defective and dilatory performance, to the extent of nearly one-third of its amount; while the claim for extra work was wholly disallowed. The case comes within the authority of Delafield v. Village of Westfield, (41 App. Div. 24, aff’d without opinion, 169 N. Y. 582); where the plaintiff’s claim, which was, in part, upon contract and, in part, for extra work, was reduced by an award of damages for failure in performance. The Appellate Division, there, held that, as the amount, when *14 ascertained, was subject to a reduction for damages sustained by the defendant for improper performance of the work and the amounts due for extra work could only be ascertained by proofs, the plaintiff’s claims were unliquidated and that, therefore, interest was not recoverable. That case, as an authority, was not questioned in Sweeny v. City of New York, (173 N. Y. 414), upon which this appellant relies. On the contrary, being referred to, it was shown, in the opinion, how the two cases differed. In the case then under consideration, it was observed that the claim was not so peculiar in its character, as to take it out of the general rule, and that the amount due to the plaintiff was .a mere matter of computation. Referring to the Yillage of Westfield’s case, it was pointed out that the plaintiff’s claim there was subject to reduction for damages, caused by breach of contract and by improper performance, and, as the defendant’s set-off was unliquidated, the plaintiff’s remedy was, necessarily, dependent upon the amount of the set-off. While the old common-law rule has been modified, which required that a demand should be liquidated, or its amount ascertained, before interest could be allowed, the extent of its modification is that if the amount due is capable of being ascertained by mere computation, the allowance of interest is proper. (See Gray v. Central R. R. Co. of N. J., 157 N. Y. 483.) In this case that was not possible, when the contract price was subject to a reduction for damages, incapable of being ascertained as to amount and when the claim for extra work was in dispute. For these reasons, I advise the affirmance of the judgment, with costs. O’Brien, Bartlett, Haight and Werner, JJ., concur; Cullen, Oh. J., and Vann, J., absent. Judgment affirmed.