Johnson, Drake & Piper, Inc. v. New York State Thruway Authority

Judgment unammously modified on the law and facts, in accordance with Memorandum and, as modified, affirmed, without costs of this appeal to either party. Memorandum: Appellant has limited its appeal to that part of the judgment which awarded claimant interest on the final payment from the date of final estimate (November 1, 1957) to the date of entry of severance judgment (August 27, 1958). The amount ($127,236.58) concededly due claimant was tendered by appellant and refused. Such refusal under the contract provisions constituted a waiver of interest on the amount so tendered (Wood v. State of New York, 12 N Y 2d 25 ; Yonkers Contr. Co. v. New York State Thruway Auth., 26 A D 2d 766 ) and the amount thereof ($4,184.67) should be eliminated from the judgment. (Appeal from judgment of Court of Claims for claimant on claim for engineering charges and interest.) Present — Williams, P. J., Bastow, Goldman, Henry and Del Vecchio, JJ.

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