Lord v. Mayor of New York — 3 Hill & Den. 426

Majority

p. 426

Lord vs. The Mayor, Aldermen &c. of the city of New-York.

Headnote

In debt upon judgment for a tort, interest is recoverable from the date of the judgment, but not from the rendition of the verdict.

The proceedings under the statute, (2 R. L. 368, § 81, et seq.) subjecting the corporation of the city of New-York to liability for damages on account of buildings officially destroyed to prevent the spread of fire, are in the nature of an action on the case; and the party in whose favor the assessment is made may recover inter, est upon it from the date of the confirmation in the common pleas, though not for the time intermediate that and the inquisition.

The act of this court affirming the decision of the common pleas in such case with, out mentioning interest, is not to be construed as an adjudication upon the claimant’s right in that particular.

Nor will a subsequent judgment of affirmance by the court for the correction of errors, though expressly awarding to the claimant interest from the date of the judgment in this court, be regarded as affecting his right to prior interest.

Where the cause of action is such as to carry interest, and judgment is delayed after verdict, by writ of error or motion for a new trial, the plaintiff is entitled to interest on the entire amount of the verdict for the time of the delay, to be taxed as a part of the general costs in the eause. Note (a.)

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In an action claiming interest upon an assessment made under the above statute, (the principal having been paid before, without prejudice to the claim for interest,) the jury in the court below gave a special verdict, upon which judgment was there rendered for the defendants. On error to this court, however, it was decided that the plaintiff ought to recover, and judgment was ordered in his favor for the amount of interest found by the jury. He afterwards inserted in his bill of costs, and procured to be taxed, additional interest on this amount from the date of the special verdict Held, on motion for re-taxation, that the proceeding was regular. Note (a.)

On certiorari from the final adjudication of an inferior tribunal, this court merely reverse or affirm the judgment. If the latter, the adjudication below remains and is available from the time it was made. Per Cowen, J.

Error to the superior court of the city of New-York. During the great fire in the city of New-York, in December, 1835, a building of which Lord was the lessee, being deemed hazardous and likely to take fire &c., was destroyed by order of the mayor, with the consent and concurrence of two aldermen. Lord’s damages were afterwards assessed by inquisition under the statute (2 R. L. 368, § 81,) at $156,274,80, besides expenses. This assessment was confirmed by the New-York C. P., and Lord commenced and action of debt in the court below to recover the amount of the assessment with interest. The defendants pleaded nil debet, and gave notice of their intention to give in evidence on the trial, that, on the motion to confirm the said inquisition and assessment, the judges of the court of common pleas being divided in opinion, no decision was made—that thereupon Lord sued out a mandamus from the supreme court, commanding the court of common pleas to enter a rule either for or against a confirmation, or show cause &c.—that the judges made a return to the mandamus, setting forth their division of opinion and asking the advice and direction of the supreme court as to the rule or order proper to be entered—that the supreme court directed a further return, and commanded the common pleas to confirm or refuse to confirm the inquisition—that an order of confirmation was thereupon entered—that a certiorari was then sued out removing the proceedings from the common pleas to the supreme court—that on the 6th of May, 1837, the order of confirmation was affirmed—that the

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proceedings were removed by writ of error to the court for the correction of errors, and, on the 28th December, 1837, the latter court affirmed the judgment of the supreme court, and ordered that Lord recover his costs in defending the writ of error, together with “ interest on the amount of said judgment from the time the same was entered in the supreme court”— .and that on the 19th of May, 1838, the defendants paid to the plaintiff $167,770,97, in full of all the damages, expenses, interest and costs to which the plaintiff was entitled.

On the trial in the court below, the jury found a special verdict setting forth the fire, the destruction of the plaintiff’s building, and the proceedings thereupon had, as detailed in the defendants’ notice. The verdict further stated, that the assessment took place on the 20th of February, 1836, and the damages then awarded were $156,274,80, expenses $32,69—that the costs in the court for the correction of errors amounted to $134,68—that the interest awarded by that court, from May 6th, 1837, to May 19th, 1838, when the record was remitted to the supreme court and filed, was $11,463,48—that the interest intermediate the assessment and confirmation was $2,309,39—that the interest from the day on which the order of confirmation was made by the common pleas to the time of its affirmance on certiorari was, $10,939,23—that all the above sums, except the last two items, had been paid to the plaintiff, and received by him without prejudice to his claim for the residue. The verdict concluded thus : “ But if the court shall be of opinion that the defendants do owe any part of the said debt &c., and that the plaintiff is entitled to interest from the date of the said inquisition, then the jurors say that the defendants, at the date of this verdict, owe to the plaintiff $13,789,60, in manner and form &c., and do not owe to the plaintiff the residue, &c. And if the court here shall consider that the plaintiff is entitled to interest from the time of the confirmation of the said inquisition of damages in the said court &c., and not before, then the jurors find that the defendants do owe to the plaintiff the sum of $11,385,91, a.nd do not owe,” &c. On this verdict the court.

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below rendered judgment for the defendants, and the plaintiff sued out a writ of error.

S. Lord, Jun., for the plaintiff in error.

G. F. Taiman, for the defendants in error.

The proceedings under the statute subjecting the corporation of New-York to damages on account of buildings officially destroyed to prevent the spreading of a fire in the city, are in the nature of an action on the case for damages; and the suit remains open for contest on various grounds till confirmation in the court of common pleas of the city. The inquisition is in the nature of a verdict in such an action, and the confirmation stands instead of a judgment. Had the whole been in the common law form, the right of the plaintiff to interest would be easily settled so far as the rule of this court is concerned since the case of Klock v. Robinson, ( 22 Wend. 157 , 160, 161, et seq.) We there examined the question, and none of us felt any doubt that, in an action of debt on a judgment for a tort as well as other cause, interest might be recovered from the date of the judgment. But no one would think of going behind that, and claiming interest from the time of the verdict. The present case being the same in principle, the claim of the plaintiff fails as to the interest intermediate the inquisition and confirmation.

The court below erred, however, in denying interest for the time intermediate the confirmation in the common pleas and the judgment of affirmance in this court. The corporation having failed here to reverse the confirmation, it must be taken to have stood in full force as a judgment from the time when the rule of confirmation was entered. We cannot regard the surmise that the common pleas confirmed the assessment pro forma with a view to have the question determined on error, We can perceive no force in sucha distinction.. If established!

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in fact, it could obviously take nothing from the legal effect of the confirmation.

It is supposed that the question of interest was settled by the silence of this court when we affirmed the proceedings in the common pleas. Not so. We had no jurisdiction of the question whether interest should be allowed or not. On certiorari from the final adjudication of an inferior court, we simply reverse or affirm what they have done. If the latter, the adjudication remains and is available from the time when it was made, as if it had never been questioned.

The rule in the court for the correction of errors ordering interest from the date of our affirmance, has no force as a judgment passed upon the question of interest prior to that time. It is a simple omission to pronounce upon it one way or the other; leaving the question entirely open to an action at law. It is not easy to perceive how any doubt of this could be raised. It would seem to be entirely plain from the nature of the case.

The judgment of the superior court must be reversed, and a judgment entered for $11,385,91 interest in favor of the plaintiff.

Ordered accordingly.^[1]

(a) (a) The above case was decided at the July term, 1841. The plaintiff after, wards entered up judgment for the amount awarded by the supreme court, and in. serted in his bill of costs and procured to be taxed a charge for interest on the sum thus awarded from the date of the special verdict to the time when the above judgment of reversal was rendered. A motion was subsequently made in behalf of the defendants for a re-taxation, on the ground that the charge for interest was not • taxable. On that motion the following ooinion was delivered, G. F. Taiman, for the defendants. D. Lord, for the plaintiff. By the Court, Co wen, J. The action below was on a confirmation in the nature of a judgment carrying interest, on which a verdict was found for the interest. The principal would also have been included, had it not been paid. The verdict *431 was therefore in effect the same as that in Vredenburgh v. Hallett, (1 John. Cos, 27.) I say in effect the same. That was a general verdict in favor of the plaintiff for principal with interest down to the quarto die post of the next term. An order was obtained by which payment was delayed with a view to take the opinion of the court on a motion for a new trial. That being refused, the court allowed interest on the entire verdict down to the time of the judgment, saying the interest might be taxed as a part of the general easts in the cause. They added: “In all actions founded on contracts carrying interest, and delayed under similar circumstances, the like interest may in like manner be taxed.” In .The People v. Gains, ( 1 John. Rep. 343 ,) this court said: “ In all cases where the defendant applies to set aside a verdict, and thereby delays the plaintiff, interest is awarded.” In the case before us, had the verdict below been general for the sum found, and delayed by resistance, and judgment been rendered for the plaintiff, the case would have been almost circumstantially the same with Vredenburgh v. Hallett. As It stands, the difference is but matter of form. Instead of a general verdict and motion for a new trial, on a case, the same filing is in effect done by the special finding and motion for judgment. The party was delayed first by a judgment against him in the court below. This court differed from that, and therefore did on error what it thought that court should have done—rendered judgment for th'e plaintiff. Here is then a sum liquidated by verdict which the defendants should have paid, as we thought, at once; but the judgment was delayed by their raising a question of law. Judgment finally passed against them. In principle, I am unable to distinguish the case from Vredenburgh v. Hallett. The claim to interest stands on grounds of equity which were fully considered and vindicated by Lord Mansfield in Robinson v. Bland, (2 Burr. 1085, et seq.) I am therefore of opinion that the motion to review the taxation should be denied. (See Williams v. Smith, 2 Cain. Rep. 253 ; Paul v. Alston, 1 Rep. Const. Ct. South Car. (Mills,) 378 ; Taul v. Moore, Hardin’s Kentucky Rep. 90.) Ordered accordingly

Cases cited

Klock v. Robinson 22 Wend. 157 N.Y. Sup. Ct. at 160, 161 p. 429