
    Joseph Havender, Appellant, v. Sophia Brodbeck, Respondent.
    (Supreme Court, Appellate Term, First Department,
    December, 1913.)
    Payment — of a debt — interest to be treated as something other than an integral part of a debt.
    Interest — action to recover interest on a paid debt — waiver — contracts.
    It is competent for parties on payment of a debt to treat the interest as something other than an integral part of the debt.
    Where the complaint in an action to recover interest on a paid debt was dismissed on the ground that the acceptance of the principal of the debt without reserving the right to recover interest was a waiver thereof, and because of the exclusion of all evidence as to conversations between plaintiff and defendant it is impossible to determine from the record on appeal whether the contract of the parties contemplated the right of the plaintiff to recover interest either under the contract or as damages for its breach, a judgment dismissing the complaint will be reversed.
    Appeal by plaintiff from a judgment of the City Court of the city of New York, dismissing the complaint.
    Thomas C. Patterson (Herman M. Schaap, of counsel), for appellant.
    Louis Wendel, Jr., for respondent.
   Seabury, J.

The plaintiff sued to recover $668.50, which sum is the interest on $4,775 from January 1, 1910, to May 2, 1912. The last mentioned date was the date upon which the sum of $4,775 was paid to the plaintiff for labor and materials furnished by the plaintiff to the defendant.

The learned court below dismissed the complaint on the ground that the principal of the debt was accepted without reserving the right to recover interest, and that the right to recover interest was thereby waived. We think that, under the evidence in this case, the question whether the right to recover interest was reserved when the principal of the debt, was paid should have been submitted to the jury.

On April 27,1912, the attorney for the defendant wrote the plaintiff as follows:

“ I presume you are aware that Mrs. Brodbeck has sailed for Europe. She has left with me a check to your order for $4,775, being the amount of the contract for the mausoleum. In regard to the claim you make for interest, we can leave that matter in abeyance until a future time, or until she returns. I have, however, full authority to adjust any claim you may have, and if you 'will make an appointment at my office, we may come to an agreement. Kindly let me hear from you.” In reply to this letter, the plaintiff wrote as follows: “ Tour letter of the 27th in reference to the account of Mrs. Brodbeck received, and in reply would say that if you send me the check she left for me ($4,775), I will place the same to her credit. I am enclosing you a statement of her account to May 1, 1912. ’ ’

The statement of account which was enclosed claimed interest on the sum of $4,775 from January 1, 1910, to May 1, 1912. Subsequently, the attorney for the defendant sent the plaintiff a check for $4,775, and in the letter enclosing the check he said: “ In sending you this check, however, I do not admit your right to interest on the same.” The plaintiff acknowledged the receipt of the check, credited the amount paid on the principal of the debt and interest and claimed the amount of the interest as balance due.

The letters and the acts of the parties seem to us to indicate very clearly that, when the principal of the debt was paid and accepted, it was understood between the parties that it was without prejudice to the plaintiff’s claim for interest. This question was reserved for future consideration. That being so, there could be no waiver of the right to recover interest predicated merely on the receipt of the principal sum. Grote v. City of New York, 190 N. Y. 235, 237.

The letters offered in evidence do not show that there was an agreement that interest should be paid, but demonstrate merely that the principal debt was accepted without prejudice to the plaintiff’s right to recover interest, if, as a matter of fact, he was entitled to have such a recovery. Ordinarily ‘‘ interest follows the principal as the shadow does the substance ” (Hatcher v. Lewis. 4 Rand. [Va.] 152, 157; Woerz v. Schumacher, 161 N. Y. 530), but it is competent for the parties by contract to treat it as something other than an integral part of the debt. 22 Cyc. 1474.

In this case-the learned court below excluded all evidence of conversations between the plaintiff and the defendant; so that it is impossible to determine from the record before us whether the contract of the parties contemplated the right of the plaintiff to recover interest either pursuant to the contract or as damages for the breach of contract.

It follows that the judgment should be reversed and a new trial ordered with costs to the appellant to abide the event.

Guy and Bijur JJ., concur.

Judgment reversed and new trial ordered, with .costs to appellant to abide event.  