Marco M. Frisone, Inc. v. Paul Borg Construction Co.

Judgment unanimously modified on the law and facts in accordance with memorandum and as modified affirmed, with costs to plaintiff-appellant. Memorandum: It was an improvident exercise of discretion to deny interest and costs. The record is devoid of any equitable reason for denying such relief (5 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 5001.06; National Bank of North Amer. v. Marine Midland Grace Trust Co. of N. Y., 33 A D 2d 678). Interest on the award should be computed from April 17, 1968. Furthermore, the judgment below should have been, with costs. (Appeal from judgment of Monroe Trial Term in action for damages for breach of contract and to foreclose mechanic’s lien.) Present — Del Vecchio, J. P., Witmer, Gabrielli, Moule and Cardamone, JJ.