
    Edwin H. Hewett, as Administrator, etc., of Mary Hewett, Deceased, Respondent, v. John Chadwick, Appellant, Impleaded with Others.
    
      Complaint—an allegation that the plaintiff is an administrator, not contested nor proved on the trial, may be proved by the record, upon appeal — interest after default is in the nature of damages.
    
    In an action brought by an administrator, the allegation as to his appointment as such was put in issue by the answer, and no proof of his appointment was given on the trial, nor was any question raised in respect thereto.
    
      Held, that it was competent for the plaintiff and respondent, on an appeal from a judgment in his favor, to file with the appellate court a certified copy of the decree appointing him administrator, and that this would support the judgment in respect to that allegation.
    Where the principal is not paid when due, according to the terms of a mortgage, interest after its maturity is recoverable as damages, and at the rate fixed by law, and not at that designated in the mortgage.
    Appeal by the defendant, John Chadwick, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 16th day of April, 1895, upon the report of a referee.
    
      W. B. Simson, for the appellant.
    
      P. M. Sullivan, for the respondent.
   Green, J.:

This action was begun October 30, 1894, to foreclose a mortgage on real estate, and the complaint contains the usual allegations in such cases. It is alleged in the complaint that the mortgage was originally given to Edwin H. Hewett, and that he assigned it to Mary Hewett, who thereafter died, and that December 24, 1892, the plaintiff was appointed the administrator of her estate. The defendant by his answer alleges that he has not sufficient knowledge, as to whether the plaintiff was so appointed, to form a belief, and alleges as an affirmative defense that the mortgage has been paid. The only issue tried before the referee was the one of payment, which was found in favor of the plaintiff upon evidence -sufficient to sustain the finding. Ho question seems to have been raised on the trial over the appointment of the plaintiff as administrator, and we find no evidence in the record that he was so appointed; but the plaintiff having filed with this court a certified copy of the decree appointing him administrator, as it is permissible to do to sustain a judgment (Baylies N. T. & App. 161), it is sufficient.

The referee has, however, committed an error either in the computation of interest or in computing the same contrary .to the rule fixing the rate per cent allowable under the evidence in this case. The mortgage bears date September 17, 1874. By its provisions interest was to be paid semi-annually upon all unpaid sums to the time of each payment. Ho rate of interest was expressed in the mortgage; it became due by its terms March 17,1875. The referee has evidently computed interest at the rate of seven per cent per annum to the the date of his report. The principal was not paid when due according to the terms of the contract. The contract was violated and the interest after that upon the amount unpaid could only be recovered as damages, and at the rate of interest allowed by law.

The rate of interest was, on the 1st day 'of January, 1880, reduced to six per cent, and from that date plaintiff was entitled to interest at that rate and not at the higher rate prevailing at the date of the contract.

Adopting this rule in the computation of interest, we find that the amount of principal and interest due and unpaid upon this mortgage at the date of referee’s report was the sum of $737.79;

The judgment herein should be modified, by decreeing that the amount due the plaintiff is the sum of $737.79, instead of the sum of $913.21; and as so modified, judgment is affirmed.

All concurred.

Judgment modified by reducing the judgment and report to $737.79, and as modified affirmed, without costs.  