
    Shafer Fruit and Cold Storage Company, Respondent, v. E. M. Upton Cold Storage Company, Appellant.
    Fourth Department,
    July 6, 1909.
    Damages — interest — unliquidated claim.
    Where: the amount of damages for injury to apples received for cold storage depended upon conflicting evidence, interest should not he allowed as the damages are unliquidated and not susceptible of ascertainment by mere computation. .
    Although interest is now allowable on an unliquidated demand the amount thereof must he ascertainable by mere computation.
    McLennan, P. J., and Kruse, J., dissented.'
    Appeal by. the defendant, the E. M. Upton Cold Storage Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 26th day of December, 1908, upon the report of a referee.
    
      John A. Barhite, for the appellant.
    
      John D. Lynn, for the respondent.
   Spring, J.:

The plaintiff, a domestic corporation engaged in the fruit business, in the fall of 1903 delivered in the cold storage plant of the defendant in the city of Rochester a large quantity of apples in barrels to be kept for the winter, at the stipulated price of forty cents per barrel, upon the agreement of the defendant to return tile same in the spring in as good condition as when stored, and ‘the action is to recover damages for the breach of that agreement. The plaintiff claims and the referee has found that before the apples were stored the defendant represented that its cold storage plant was in good condition, properly constructed and operated, and if fruit was in good condition when received in, the plant it would retain that condition, and the defendant agreed to deliver these, apples m the' spring in as good condition as when placed in cold storage. The proof showed that the apples were in first-class condition when'delivered to the defendant and when redelivered to the plaintiff in the following spring they had become over-ripe and had deteriorated in value.

It seems that it is necessary to keep the temperature of a cold storage plant practically uniform, varying from thirty to thirty-two degrees Fahrenheit in order to prevent the apples from becoming “scalded,”.or over-ripe. The proof showed that the temperature of this plant was allowed by the defendant to vary four or five degrees, and this lack of attention to the system of cooling caused the quality of the apples to depreciate during the time they were in the plant of the defendant. All these facts have been found by the learned referee upon abundant evidence, and we do not disagree with his conclusions on the merits.

The referee, however,, has allowed the plaintiff interest on the sum awarded from the 1st of May, 1904, the time when the last of the apples was removed from cold storage, and in this we think he erred. The damages in this case were unliquidated and not susceptible of ascertainment by mere computation. In the first place, there was a slight reduction in the quantity of apples claimed by the plaintiff to have been damaged. The demand of the plaintiff as alleged in the complaint was for $3,000, while the referee allowed $1,034. The proof of the plaintiff as to the damage to the apples was seventy-five cents per barrel, while the referee allowed twenty-five cents per barrel. There was a question of fact as to the value of the apples in good condition in Rochester and in other large cities to which they were shipped. The whole matter depended upon varying proof.

We appreciate that there has been a departure from the former rule that interest is not allowable on an unliquidated demand. (Sweeny v. City of N. Y., 173 N. Y. 414; Sloan v. Baird, 162 id. 327; Gray v. Central R. R. Co. of N. J., 157 id. 483; White v. Miller, 78 id. 393; Kervin v. Utter, 120 App. Div. 610.)

The amount of the claim, however, must still be ascertainable by mere computation. (Excelsior Terra Cotta Co. v. Harde, 181 N. Y. 11; Beckwith v. City of New York, 121 App. Div. 462, 465; Coates v. Village of Nyack, 127 id. 153, 158.)

The plaintiff never made any demand for a specific sum. Hr. Shafer, the president and manager of the plaintiff, testified that he told Mr. Hill, the manager of the defendant, “ if his people would be fair iii the matter we would1 meet them halfway.” And again, he told him' “ ofí-hand ” the plaintiff “ would settle for $4,000 ; ” and no other demand or suggestion was made as to the amount of damages claimed. The whole matter of the extent of the liability of the defendant, if any, had to .be ascertained from conflicting-evidence. , .

Tlíé referee in his computation, found there were 4,096 barrels of fruit damaged, and he. allowed a depreciation, chargeable to the defendant, of twenty-five cents per barrel, which would be $1,024; whereas he awarded $1,034, an error of $10 in the computation.

The judgment should-be modified by reducing -the sum awarded to $1,024 and striking out the interest allowed, leáving the recovery' $1,024 at the date- of the ■ report, and so modified affirmed, without costs of this appeal' to either party. '

All concurred, except McLennan, P. J., and Kruse, J., who dissented as to the disallowance of interest on the authority of Wilson v. City of Troy (135 N. Y. 96).

Judgment modified by reducing the sum awarded to $1,024, and further by striking out -the interest allowed-, leaving the recovery $1,024 at- the date of the report, and as so modified affirmed, without costs -of .this appeal to either party. '  