Hoard v. Garner — 6 N.Y. Super. Ct. 677

Majority

p. 677

Hoard v. Garner.

Headnote

Where a remittitur from the court of appeals contained a direction that the respondent should recover his costs in that court, and also interest on the judgment below “ by way of damages for the delay and vexation caused by the bringing of the appeal,” it was held, that the respondent was not entitled to recover double interest on the judgment, once as interest under the statute, and again as damages on the appeal.

The statute authorizing the appellate court to award such damages in its discretion, seems to contemplate the granting of a specific sum as and for damages.

November 15, 1851.

The defendant appealed from the judgment in this cause, (ante Yol. 3, p. 179,) to the court of appeals, where the judgment was affirmed, October 25th, 1851. The remittitur from that court was filed with the clerk of this court, the costs were adjusted, and the original judgment and interest thereon together with those costs were paid. The plaintiff claimed in addition, a further sum equal to the interest on the judgment, by way of damages on the appeal. The clause in the remittitur on which this claim was founded, was in these words:

“And it is further ordered and adjudged, that the respondent recover against the appellant his costs of appeal in this court, and also interest on the amount of the judgment of the superior court by way of damages for the delay and vexation caused by the bringing of the appeal in this cause.”

The question was presented on a motion to enter judgment upon the remittitur.

G. JET. Smith, for the plaintiff.

H. D. Sedgwick, for the defendant.

(with the concurrence of all the Justices.)— We have come to the conclusion that the plaintiff is not entitled to this double interest. ■ This formula has been used in remit

p. 678

titurs from the court of errors for many years. It was adopted at a period when judgments did not bear interest. At common law interest was not collectible on any judgment. The statute at first allowed its collection on judgments recovered upon contract ; and finally, in 1844, the statute extended the provision to all judgments. The statute relative to writs of error and appeals provides that on the affirmance of a judgment, the defendant in error shall recover “ damages for the delay and vexation, to be assessed in the discretion of the court of error,” and on an appeal, “ the court may, in its discretion, award damages for the delay and vexation caused by such appeal.” (2 R. S. 618, §§ 32, 35.) It seemed to contemplate that the court, whenever it exercised the discretion conferred, should award some specified amount as and for damages.

It is argued that as interest is now recoverable on all judgments, this clause in the remittitur is nugatory, unless it have the effect to give double interest, and so we consider it. The formula used is not an assessment of damages under the statute giving damages, and it does not show to us clearly that the court intended to give any thing as damages beyond the interest on the judgment once computed. The clerk of the court of appeals, in a letter which was produced on the motion, states that the court never allows double interest. And we think that on principle, we ought not to allow the double interest claimed by the plaintiff.