Hyperlawhypertext legal databasebeta A. M. Hazell, Inc. v. City of Long Beach 257 N.Y. 201

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A. M. Hazell, Inc. v. City of Long Beach

257 N.Y. 201 Court N.Y. Decision date 1931-07-15 English

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p. 201
A. M. Hazell, Inc., Appellant, v. The City of Long Beach, Respondent.
(Argued June 15, 1931;
decided July 15, 1931.)
p. 202
George W. Bristol for appellant.
The plaintiff is entitled to interest on the sums enumerated in each of the several certificates from the dates they were issued to the dates when said principal was paid, less payments made on account. (Bradley v. McDonald, 218 N. Y. 351 ; Ryan v. City of New York, 159 App. Div. 105 ; Mechanics Bank v. City of New York, 164 App. Div. 128 ; O’Rourke Engineering Constr. Co. v. City of New York, 229 App. Div. 261 ; Mercantile Factors Corp. v. Warner Brothers Corp., 215 App. Div. 530 ; 244 N. Y. 504 .)
David B. Tolins, Corporation Counsel, for respondent.
The plaintiff is entitled to interest only from May 11, 1929, which is thirty days after the issuance of the final certificate of the city engineer. (Bradley v. McDonald, 218 N. Y. 351 ; Whitmore, Rauber & Vicinus v. Village of Charlotte, 91 Misc. Rep. 584 .)

By a fair construction of the contract, article XLIII constitutes an exception to the rule as to the time of payment prescribed by article XLI and imposes on the defendant a duty to make payment from time to time to the extent of eighty-five per cent of the value of the work done and materials furnished as established by intermediate certificates. This reading of the contract is in accord with the practical construction indicated by the conduct of the parties.

p. 203
Demand for payment was made on November 26, 1928, in respect of the installments then due, and informally thereafter, through correspondence and otherwise, as to installments subsequently accruing.

The debt being established, interest from the date of the demand (Sweeney v. City of New York, 173 N. Y. 414 ) follows as an incident.

The judgment of the Appellate Division should be modified by striking out the provision that interest on the sum of $135,536.23 shall be computed from May 11, 1929, and by adding interest as follows: on $76,441.44 from November 26, 1928, and on the later installments as prayed for in the complaint, and as so modified the judgment should be affirmed with costs to the appellant.

Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ., concur.

Judgment accordingly.

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