Gray v. Central R. Co. of New Jersey , 89 Hun 477 ( 1895 )

VAN BRUNT, P. J.

It does not seem necessary to discuss the Question involving the right of the plaintiff to the benefit of the verdict rendered. There are no exceptions to the admission or exclusion of evidence which require special mention. The learned court, however, seems to have erred in charging the jury that, if they found for the plaintiff, they should allow interest. It seems to be the rule in this state that, where the damages are unliquidated, and the party in default has no means of ascertaining the amount of damages to which the other party is entitled, so that he may tender the same, interest upon the amount of damages is not allowable. Mansfield v. Railroad Co., 114 N. Y. 331, 21 N. E. 735, 1037; McMaster v. State, 108 N. Y. 542, 15 N. E. 417; White v. Miller, 78 N. Y. 396. In the latter case, the question is examined at length, and the foregoing seems to be the conclusion arrived at. In Mansfield v. Railroad Co., supra, the court lays down the rule that, in an action to recover damages for breach of contract, unless the means are accessible to the party to be charged of ascertaining, by computation or otherwise, the amount to which the plaintiff is entitled, he may not be allowed interest on the amount of the damages found, and the submission of the question as to such allowance to the jury is error.

The judgment should be modified by reducing the judgment to the sum of $2,500, the amount of the verdict, with interest thereon from the date of its rendition to the entry of the judgment, and, as modified, the judgment should be affirmed, without costs to either party. All concur.