Reiss v. New York Steam Co. — 35 N.Y. St. Rep. 86

Majority

p. 86

Solomon Reiss et al., Resp’ts, v. The New York Steam Co., App’lt.

(New York Superior Court. General Term,

Filed January 5, 1891.)

Headnote

1. Negligence—Damages—Interest.

In an action for injuries to personal property the plaintiff is not entitled absolutely and as matter of law to recover interest upon the amount of the damage immediately caused by the negligence, but the jury in assessing the damages should add interest if, in their judgment, that be necessary to give full compensation.

2. Same—Charge.

In such an action the judge charged that if “plaintiffs were entitled to recover anything, they were entitled to recover interest on the amount of damages allowed. Held, error.

Appeal by defendants from judgment against them entered on the verdict of a jury and from order denying their motion for a new trial made upon the minutes of the judge.

James W. Hawes, for app’lt; Stern & Myers (Mr. Kingbury, of counsel), for resp’ts.

An examination of the case shows that there was no error on the trial, unless in one respect that will be considered.

The action was for damages for injuries to the personal property of plaintiff caused by the negligence of defendants. The learned judge charged the jury that if the plaintiffs were entitled to recover anything, they were entitled to recover interest on the amount of damages that the jury allowed.

In actions of this kind for the recovery of damages for injuries to personal property, the plaintiff is not entitled absolutely and as matter of law to recover interest upon the amount of the damage immediately caused by the negligence, but the jury in assessing the damages should add interest, if in their judgment that be necessary to give full compensation. Mairs v. Manhattan R. E. Ass'n, 89 N. Y., 507 , and cases there cited.

The charge as made was not excepted to, but the defendant’s counsel at the end of the charge said that he excepted to that part of the charge which instructs the jury that if the plaintiffs recover they may be entitled to recover interest on the damages. If such had been the charge, it would have been correct, for it is true there may be a recovery for interest, if that be necessary to indemnity or compensation and the form of the exception diverted the attention of the judge from the doubtful and incorrect part of the charge. Therefore the exception would not require the reversal of the judgment.

Revertheless, it cannot be affirmed that interest was given as compensation not as matter of law, and lest injustice may have

p. 87

been done, the judgment should not be upheld, so far as the interest

The judgment should therefore be reversed, with costs to abide the event, and a new trial ordered unless the plaintiff stipulate, De Carricarti v. Blanco, 121 N. Y., 238 ; 30 N. Y. State Rep., 926, that the verdict be reduced by deducting from its amount such part of it as represents interest from January 1,1888, and the judgment correspondingly modified, and in that case the judgment as modified is affirmed, without costs of appeal.

Sedgwick, Ch. J., and Freedman, J., concur.