Reiss v. New York Steam Co. — 59 N.Y. Super. Ct. 57

Majority

p. 57

SOLOMON REISS, et al., Respondents v. THE NEW YORK STEAM COMPANY, Appellants.

Headnote

Action for damages to personal property caused by defendants' negligence, interest on same, when allowed.

In this case the judge of the trial term 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. Held, that in cases of this kind the plaintiff is not entitled absolutely to recover interest upon the amount of damages, but the jury should add interest if, in their judgment, such addition be necessary to give full compensation.

The charge as made was not excepted to, but defendants’ counsel said he excepted to that portion of the charge which instructed the jury that if the plaintiffs recover they may be entitled to interest on the damages. If such had been the charge it would have been correct, but the form of the exception diverted the attention of the judge from the doubtful or incorrect part of the charge; therefore, Held, that the exception as made does not require the reversal of the judgment. Nevertheless, it cannot be affirmed that interest was given as compensation and not as matter of law; and lest injustice may have been done the judgment should not be upheld so far as the interest included therein from January 1, 1888, and judgment should be reversed and a new trial ordered unless plaintiffs stipulate that the verdict be reduced by deducting therefrom such part thereof as represents interest from January 1, 1888, and the judgment be modified accordingly, and in that case the judgment so modified is affirmed without costs of appeal.

Before Sedgwick, Ch. J., and Freedman, J.

Decided January 5, 1891.

Appeal from judgment entered upon the verdict of a jury, and from an order denying the motion of defendants for a new trial upon the judge’s minutes.

p. 58

James W. Hawes, for appellants.

Stern & Myers, attorneys, and H. A. Kingsbury of counsel, for respondents.

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 plaintiffs caused by the personal 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 defendants’ 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 or incorrect part of the charge. Therefore, the exception would not require the reversal of the judgment.

. Nevertheless, it cannot be affirmed that interest was given as compensation, not as matter of law. And lest injustice may have been done, the judgment should not be upheld so far as the interest.

p. 59

The judgment should, therefore, be reversed with costs to abide the event, and a new trial ordered unless the plaintiffs stipulate (de Carricarlio v. Blanco, 121 N. Y. 233 ) that the verdict be reduced by deducting from its amount such part of it as represents interest from January 1, 1888, and judgment correspondingly modified, and in that case the judgment, as modified, is affirmed without costs of appeal.