Kelly v. Bonesteel

Hardin, J.: Under section 3070 the appellant contends that the interest upon the first recovery should be computed and added to the verdict, and then the last verdict subtracted from that amount, and the difference found to be ten dollars and thirty-seven cents, and that as that difference is more than ten dollars appellant should recover costs. The language of the section to be considered is, viz.: “ If an offer is not made and the verdict, report or decision upon the appeal is more favorable to the appellant by the sum of ten dollars than the verdict or decision in the court below, * * * the appellant is entitled to recover costs upon the appeal, otherwise the respondent is entitled to recover costs.” Section 371 of the Code of Procedure contained substantially the same provision. It has been determined that the interest upon the first verdict cannot be added to it, and the second verdict subtracted from the amount so ascertained. That one verdict must be subtracted from the other, and if the difference is riot more than ten dollars then the appellant is not entitled to recover costs but must pay costs to the respondent. (Smith v. May, 32 How., 224; Whitney v. Wells, cited in above case and decided in 1864; Humiston v. Ballard, 39 id., 93; S. C. approved, 40 id., 44, Third Dept.) Baldwin v. Brown (37 How., 387) was decided “ without computing interest on the offer from the time it was made,” and is not an authority under which the rule contended for by the appellant can be sanctioned. In Pearce v. The Northern Central Railroad Company (5 Weekly Dig., 566) this court held that “ interest is to be left out of consideration in determining the question of costs.” (See, also, Chapin v. Skeels, 20 Hun, 449; Pike v. Johnson, 47 N. Y., 2; Johnston v. Catlin, 57 N. Y., 652; Snyder v. Hughes, 27 Hun, 374.) Interest cannot be added to the sum offered, in determining whether a judgment is more favorable when the damages are unliquidated. (Bathgate v. Saskin, 63 N. Y., 267.) We are of the opinion that the order made by the County Court accords with the weight of authority upon the point involved and, therefore, should be affirmed. Smith, P. J., and Barker, J., concurred. Order affirmed, with ten dollars costs and disbursements.