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Bleakley v. Sheridan

115 A.D. 657 Court Second Department, Decision date 1906-11-16 English

Delivered by *658 Gaynor, J.:

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p. 657
Cara R. Bleakley, Appellant, v. Theresa A. S. Sheridan, Respondent.
Second Department,
November 16, 1906.

Headnote

Damages — amendment of verdict to add interest refused.
In an action for damages for injury to a scow by defendants who chartered'and used it contrary to the provisions of the contract, the damages are unliquidated and the plaintiff is not entitled to amend a verdict, which in terms is “ for the full amount,” by adding interest thereto.
Appeal by the plaintiff, Cara R. Bleakley, from an order of the Supreme Court, made at the Westchester Trial Term and entered in the office of the clerk of the county of Westchester on the 3d day of July, 1906, denying the plaintiff’s motion to amend the verdict of a jury for $909.92 by adding interest thereto, making it .$1,157.69. '
The verdict was in terms “ for the full amount.” It was admitted on the trial that the plaintiff had proved damage to the amount of $909.92. The trial judge entered the verdict for that amount, and then the motion to amend was made.
Mark Ash [David W. Travis with him on the brief], for the appellant.
Henry Wetherhorn, for the respondent.

■ The complaint alleges that the plaintiff chartered a scow to the defendant under an agreement that it should not be sent to a certain place which was dangerous at that season of the year; that the defendant took the scow there and it was damaged by being blown ashore. The damages alleged are the expense of getting the scow off and repairing it, and for the use of the scow meanwhile. As the damages sued for were unliquidated, the. plaintiff was not entitled to interest (Excelsior Terra Cotta Co. v. Harde, 181 N. Y. 11 ; Smith v. Velie, 60 id. 106 ). The action is not for a conversion as the. plaintiff contends, or in tort, but for a breach of contract. The order should be affirmed.

Hieschbeeg, P. J., Woodwabd, High and Milleb, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.

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