
    John H. Coyne, as Surviving Executor of Francis T. Holder, Deceased, Respondent, v. Town of Greenburgh, Appellant, Impleaded with Others.
    
      Towns — contract for improvement of highway — when town not liable for costs of ma,ndamus proceedings against commissioners — when compound interest not allowed.
    
    
      Coyne v. Town of Greenburgh, 194 App. Div. 861, modified.
    (Argued January 24, 1922;
    decided February 28, 1922.)
    Appeal from a judgment entered May 26, 1921, upon an order of the Appellate Division of the Supreme Court in the second judicial department reversing a judgment in favor of defendant, appellant, entered upon a decision of the court on trial at Special Term and directing judgment in favor of plaintiff. The action was brought for the purpose of imposing upon the town of Greenburgh a liability to pay a large part of the cost of opening and constructing Warburton avenue, from the north line of the city of Yonkers to a point at the southerly end of Constant street, in the village of Hastings, which is one of the villages in the town of Greenburgh and adjoins Yonkers on the north.
    
      Ernest P. Hoes and Ernest Freeland Griffin for appellant.
    
      Chester B. Masslich and Charles C. Marshall for respondent.
   Per Curiam.

We think the town of Greenburgh is not liable to the contractors or their assignee for the costs and allowance which the commissioners composing the Warburton avenue extension commission were directed to pay in the mandamus proceeding as the result of personal dereliction. This requires the deduction from the judgment of $654.08 with interest from October 31, 1896, and $107.65 with interest from April 26, 1897.

' We think also that interest upon the items of the plaintiff’s recovery was erroneously compounded ■ as of the date of the commencement of the action, and that simple interest only is to be allowed.

The judgment, should be modified accordingly, and as modified affirmed, without costs,

His cock, Ch. J., Hogan, Cardozo, Pound, McLaughlin, Crane and Andrews, JJ., concur.

Judgment accordingly.  