
    George Greer, plaintiff and respondent, vs. The Mayor, Aldermen and Commonalty of the City of New York, defendants and appellants.
    1. When, in an action by a tenant for life of real estate, against a municipal corporation to recover damages for injuries to buildings on such land by a mob, during a riot, a jury adopts, as part of the measure oí damages, the value of such life estate, they are bound to add by way of damages interest upon such value thereto, from the time of the final demand upon the financial officer of such corporation.
    2. Whether if the jury ascertain the value of the plaintiff’s interest in any other way than by estimating the value of the buildings, the plaintiff can claim interest as a right 1 Qumre. Fer Monell, J.
    (Before Monell and Garvin, JJ.)
    Heard October 9, 1865;
    decided December 30, 1865.
    Appeal from a judgment and an order denying a motion for a new trial.
    The action was instituted by the' plaintiff under the act of 1855, to recover damages for injury to property by a mob, during a riot. The case was tried by Mr. Justice Moncrief, and a jury. The plaintiff having proved his damages, the justice instructed the jury, that they should find interest upon the amount of the plaintiff’s damages, from the time of the second demand upon the comptroller. To this direction the defendants excepted. The jury found a verdict for the plaintiff for damages, $26,270, and interest, $3003.53.
    From the judgment entered upon the verdict in favor of the plaintiff, and from the order made at special term denying a motion for a new trial, the defendants appealed.
    
      
      J. K. Sachett, for the appellants.
    I. It was error to allow the plaintiff to recover interest upon the amount of his damages,
    
      (a.) It is a general rule, and one which is supported by abundant authority, that interest is not recoverable upon unliquidated demands. (Sedgwick on Damages, 3d ed. p. 396, and cases cited.) The case at bar is clearly within this rule.
    (5.) The injustice of allowing interest in actions for damages, under the provisions of the act of 1855, is apparent. The defendants would not be liable at all but for the statute. The statute is penal in its character, and makes them liable for damages sustained by the injury or destruction of property. In cases of destruction of property, those damages are fully compensated by the value of the property at the time of its destruction. In cases of injury, by the cost to the plaintiff of restoring his property to as good a condition as it was in, prior to the injury. The allowance of interest, therefore, was in addition to the damages given by the statute. The interest was not due to the plaintiff by virtue of any contract. It ought not to be imposed upon the defendants as a punishment for the damages sustained by the plaintiff,, for the reason that the defendants had no part or agency in occasioning those damages, and were powerless to prevent them. The refusal of the defendants to pay the damages upon demand being made, cannot create any right in the plaintiff to interest. The amount demanded was $45,000, while the amount- recovered, exclusive of. interest and costs, was only $26,270. Until the amount of the plaintiff’s damages was definitely ascertained by the verdict of the jury, the defendants could not possibly know what sum to tender the plaintiff in discharge of his claim. In this respect the case is analogous to that of McLaughlin v. The Washington Co. Mutual Ins. Co., (23 Wend. 525,) which was an action upon an. insurance policy, and the amount of the loss being uncertain, the court held that interest could not be recovered.
    II. The judgment appealed from should be modified so far as the allowance of interest is concerned, with costs of the appeal.
    
      
      L. B. Woodruff, for the respondent.
    I. The charge of the judge was in accordance with the law.
    1. The statute gives the party injured in such case an action for the damages sustained by the destruction or injury complained of. (Latos of 1855, ch. 428. 3 N. Y. Stat. at Large, 321. 3 Rev. Stat., 5th ed. 874.)
    (a.) “ The'damages sustained ” necessarily include the loss of interest till satisfaction is made ; as truly, in this case, as when the damages arising from a breach of contract are assessed, (e. g. in an action for not delivering goods sold to be delivered at a future day,) or damages for an unlawful conversion. (Dana v. Fiedler, 12 N. Y. Rep. 50. Affg. Dissenting Opinion, 1 E. D. Smith, 483. Havemeyer v. Cunningham, 35 Barb. 515. Clark v. Dales, 20 id. 65. Bissell v. Hopkins, 4 Cowen, 53. Dillenback v. Jerome, 7 id. 294. Hyde v. Stone, 7 Wend. 354. Baker v. Wheeler, 8 id. 504. Stevens v. Low, 2 Hill, 133.)
    (6.) The idea that there can be no recovery of interest where the damages are unliquidated (in the ordinary sense of that term) has been long since exploded. (Suydam v. Jenkins, 3 Sandf. 614, 621. Van Rensselaer v. Jewett, 2 Comst. 135. Campbell v. Woodworth, 26 Barb. 648.)
    (c.) The idea that interest, by way of damages, is discretionary with the jury, is equally erroneous. (Same cases, ut supra.)
    
    
      2. Whether interest is or is not to be recovered, is a question of law, with which the jury has nothing to do. {a.) When the amount of damages to be recovered can be ascertained by mere computation, upon a given state of facts, then the damages are not unliquidated in the sense that they do not bear interest, {b.) The true distinction is this": In actions in which the rule of damages is not definite and certain, (e. g. in assault and battery, slander, libel, case for fraud and deceit, and the like,) in which, even after proof of all the facts, there is no definite rule of damages to be applied by mere computation to the facts proved, and in which the amount of damages is said to rest, in a sense, in the discretion of the jury, interest is not allowable, as such, (c.) In most actions for willful wrongs, the jury may give exemplary damages according to the degree of aggravation of the defendant’s conduct, and, in such actions, the whole case, with all its circumstances, is submitted to the jury, and they are to apply thereto their own judgment, not to apply a legal rule, and make computation thereby. Even in such cases, the delay to which the plaintiff has been subjected in obtaining compensation, by the litigation to secure it, may be taken into consideration by the jury, (d.) But where the facts are ascertained or undisputed, and upon them a precise amount becomes instantly due or payable, whether such amount is determined by stipulation, or is ascertained by reference to the market, interest is allowed from the day when the amount becomes payable, because indispensable to complete compensation. (Van Rensselaer v. Jewett, ut supra. McMahon v. N. Y. and Erie R. R. Co., 20 N. Y. Rep. 469.)
    3. The design and object of the statute was indemnity to the party injured, and without the allowance of interest there is no indemnity, (a.) The title of the act indicates its purpose. It is an “ act to provide for compensating parties whose property may be destroyed in consequence of mobs or riots.” To compensate is “ to give equal value to,” to “ recompense to “return that which makes good a loss.” (Webster’s Dict. Suydam v. Jenkins, 3 Sandf. 620, 621.) (b.) To carry this purpose into effect, it accords to the party the “ damages he has sustained.” The value of the property destroyed, the expenditure requisite to replace it, constitutes the measure of the injury, at the time of its occurrence. And the actual loss or damages increase with every day the making of compensation is delayed, and so the party can only be indemnified by the allowance of interest. (Oases, supra.)
    
    4. The statute of April 14th, 1860, (Laws o/1860, eh’. 379,) provides for the liquidation of all claims against the city, and places it in the power of the city to ascertain and adjust the amount of its liabilities, (a.) The neglect and refusal of the comptroller to adjust the' amount which on such adjustment "would forthwith become legally due and payable, made the city liable for interest after such refusal, if not so liable from the time of the loss, as above insisted, (b.) It would be a violation of the plainest right to permit the claimant to suffer by reason of this refusal. The loss of interest afterward would be an aggravation of his damages, and to impose it would be to offer to the defendants a premium for causing delay by forcing the party injured to a protracted litigation, (c.) The case of McMahon v. the Erie R. R. Co. above cited, while it approves the doctrine of Van Rensselaer v. Jewett, adopts the principle now under consideration, as the ground of its decision. (d.) The language of the Court of Appeals; in Dana v. Fiedler, (12 N. Y. Rep. 50,) is apt to both the preceding points : “ If the plaintiff is hot entitled to interest as matter of law, this contradictory result follows, that while indemnity is professedly given, the law adopts such a mode of ascertaining [measuring] its amount, that the longer a party is delayed in obtaining it, the greater shall its inadequacy become.” m
   By the Court, Monell, J.

As far as we are able to un- . derstand from the very meager statement of the facts in the printed case, the jury gave the plaintiff a verdict for the value of his life interest in the property injured or destroyed, with interest upon such value, from the time of the final demand upon the comptroller.

In determining the value of the plaintiff’s interest, the jury probably ascertained the value of the property actually destroyed, and the extent of the damage to such as was merely injured. If, therefore, the jury adopted as the measure of damages in part, the value of the property injured or destroyed, then the instruction of the court, excepted to by the defendants, to add interest to such value, was not erroneous. The case cannot, we think, be distinguished from Dana v. Fiedler, (12 N. Y. Rep. 50,) which must now be regarded as having changed the rule of damages in cases of this nature. The same principle is involved in the decision in Potter v. Merchants’ Bank, (28 N. Y. Rep. 641,) which was an action for the conversion of a promissory note, and interest was allowed as part of the damages.

I am not disposed to go farther than to allow interest in those cases where injury to, or destruction or conversion of property, is the subject of the controversy or in those other cases where the value of the subject must be ascertained, to fix the measure of damages. Such, as I understand them, is the extent of the decisions. It is not intended to allow interest, as a matter of course, in every action for the recovery of unliquidated damages.

If, in the case before us, the jury ascertained the value of the plaintiff’s interest in any other way than by assessing the value of the buildings, it- is doubtful if the plaintiff could claim interest as a right. All presumptions, however, are in favor of the correctness of the verdict, and the plaintiff must have the benefit of them in this case.

A motion appears to have been made at special term for a new trial, and denied, but we are not furnished on this appeal with any of the evidence, and we cannot therefore look into the case to see if the verdict is supported by proof.

The only exception being to the allowance of interest, the judgment and order, for the reasons assigned, must be affirmed.  