
    James Sweeny and Others, Doing Business under the Firm Name of D. Sweeny’s Sons, Respondents, v. The City of New York, Appellant.
    
      Claim against the city of New York—when the contractors are entitled to interest from the making of a refereds report in their favor and not from the date of presentation of the claim.
    
    Where á contract made by the commissioner of buildings of the borough of Manhattan provides that the contractors shall receive “ the following prices for the following classes of work to be done and material 50 furnished as aforesaid, to wit,” but does not specify the quantity of work to be performed or- of material to be furnished, and the contractors, after performing the contract, present 'a claim to the comptroller -of the city of New York, under section 261 of chapter 378 of the Laws of 1897, for $106,080,48, and- upon the rejection of such a claim bring an action thereon which is tried before a referee, who reports in favor - of the contractors for $79,229.98, the latter are not entitled to interest upon the recovery from the time of the presentation of the claim to the comptroller, but, under-section 1235 of the Code of Civil Procedure, they are entitled to interest - from the time the report is made to the date of the entry of the judgment.
    Appeal by .the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 21st day of February, 1901, upon the report of a referee.
    
      Theodore Gonnoly, for the appellant.
    
      L. Laftin Kellogg, for the respondents.
   Ingraham, J.:

The action was brought to recover for work, labor and services rendered by the plaintiffs under a contract made with the plaintiffs by the commissioner of buildings of the borough of Manhattan to remove certain unsafe walls of the Hotel Windsor, in the city of New York, which were destroyed by fire on the 17th. day of March, 1899, and in recovering dead bodies under the ruins of the hotel. The complaint alleges that the work was performed at the special instance and request of the defendant through its commissioner of buildings of the borough of Manhattan, and the answer denies that the plaintiffs performed work, labor and services and furnished materials to defendant between the 17th day of March and the 3d day of April, 1899, of the value of and at the agreed price specified in the complaint; but there is no denial that the work that was performed by the plaintiffs was at the request of the commissioner ■of buildings. The action was tried before a referee where the only question was as to the amount due to the plaintiffs. The referee reported in favor of the plaintiffs for $79,229.93. The complaint alleged and the answer admitted that the said claim was presented to the comptroller on the 29th day of June, 1899, and the referee allowed interest on the amount due from the 3d day of May, 1899. Judgment was entered upon this report, when the parties entered, into a stipulation which recited the entry of the judgment; that the defendant desired to appeal from the portion of such judgment which allowed interest on the sum of $79,229.93 from May 3,1899, and the plaintiffs desired to obtain immediate payment of the amount of said judgment not disputed, namely, the amount awarded by the referee, with costs of the action, and interest thereon from the date of the judgment, to wit, February 21, 1901, and it was stipulated that the defendant should pay to the' plaintiffs this sum; that said payment was to be made without prejudice to the claim of the plaintiffs that interest on the amount of $79,229.93 is due and payable from June 29,1899; and without prejudice to the claim of the defendant that no interest whatever is due on the amount awarded to the plaintiffs for any time before the date of entry of judgment, to wit, February 21, 1901, and it was further stipulated that whereas, by oversight, interest on the said sum of $79,229.93 was directed in said judgment to run from May 3, 1899, down to the date of entry of said judgment, the fact being that the notice of the claim and demand of interest was not filed in the office of the comptroller of the city of New York until June 29, 1899; that in the event that it should be finally adjudged that the plaintiffs are entitled to interest on the said amount to the date of entry of judgment, the interest should run on the said amount from June 29, 1899, and not from May 3,1899, and that the appeal from the judgment should bring up only the question of the allowance of interest prior to the entry of the judgment. . The question presented, therefore, is whether the plaintiffs are entitled to interest on the amount awarded from June 29, 1899, to February .21, 1901,. the date of the entry of the judgment. The plaintiffs’ claim presented .to the comptroller was to recover the sum of $106,080.43. The issue raised by the answer was as to the value of the labor and services rendered by the plaintiffs. The plaintiffs have succeeded in establishing their claim for $79,229,93, but the judgment determined that the plaintiffs were not entitled to. recover the stim that they had demanded from the comptroller, but a sum nearly $25,000 less than that demanded. The plaintiffs demanded of the city, not the amount due them for work, labor, and services rendered; and for which they were entitled to be .paid under their .contract, but an amount largely in excess of that actually due and to which they were entitled. It seems to be well settled that where a demand is necessary to entitle a party to interest that, demand must be for the sum of money due so that the. party refusr ing to' pay the amount demanded is in default. In Cutter v. Mayor (92 N. Y. 169) Judge Danforth says : “ Where, however, • a demand is necessary as. a foundation for a claim of interest, it must be a distinct demand for the sum of money to which the party is then-entitled.” (See, also, Carpenter v. City of New York, 44 App. Div. 230; Deering v. City of New York, 51 id. 402.) The. notice to the comptroller was served in compliance with section 261 of the charter of the city of New York (Laws of 1897, chap. 378), which provides that “No action or special proceeding, for any cause whatever, shall be prosecuted or maintained against the city of New York, unless it shall appear by and as an allegation in the complaint or necessary moving: papers that at least thirty days have elapsed since the demand, claim or claims upon which such action or special proceeding is founded were presented to the comptroller of said city for adjustment, and that he has neglected or refused to make an adjustment or payment thereof for thirty days after such presentment.” There is nothing in this provision of the statute which .changes the time at which an obligation of. the city shall become due and payable, or which affects at all the liability of the city of New York upon -its obligation. ■ It affects merely the remedy and requires a presentation of a claim to the comptroller and a neglect, of the comptroller to adjust or pay the same for thirty days before a claimant against the city can maintain an action to recover the. amount of his claim. I cannot see that the presentation of the claim or demand upon the comptroller affects the liability of the city to pay or the date from which interest should be allowed. The right of the plaintiff to interest must depend upon the general rule of law as to when interest is payable upon a demand of this character for which a recovery has been had. Much has been written in text books and reported cases upon the right to recover interest upon unliquidated demands, and the cases upon the subject are not easily reconciled. It is, however, now settled in this State that in an action to recover damages for a breach of a contract, where the damages are unliquidated, interest runs from the date of the judgment, subject to the provision of section 1235 of the Code of Civil Procedure, which directs the clerk of the court to include in the amount of the judgment'interest upon the sum awarded by the verdict, report or decision, from the time that the verdict was rendered or the report or decision made. In White v. Miller (71 N. Y. 118; 78 id. 393) it was held in such a case that where the demand was unliquidated and the amount could not then be determined by computation simply, or by reference to market values, the plaintiff was only entitled to interest from the date of the entry of the judgment; and this was followed in McMaster v. State of New York (108 N. Y. 542); Mansfield v. N. Y. C. & H. R. R. R. Co. (114 id. 331); Gray v. Central R. R. Co. of New Jersey (157 id. 483), and Sloan v. Baird (162 id. 327). In this latter case, Judge Haight, delivering the opinion of the court, says: “The rule as stated in these cases is to the effect that in an action to recover unliquidated damages for a breach of a contract, interest is not allowable unless there is an established market value of the, property, or means accessible to the party sought to be charged of ascertaining, by computation or otherwise, the amount to which the plaintiff is entitled.” The case under consideration, however, differs from these cases in that this action is not brought to recover damages for a breach of a contract, but to recover the amount due under a contract for work, labor and services rendered according to the terms of the contract. The referee has found that it was agreed between the parties that the plaintiffs were to receive from the defendant “ the following prices for the following classes of work to be done and material so furnished as aforesaid, to wit,” and then follows the price that the defendant was to pay to the plaintiffs for the work to be done and materials furnished. In Delafield v. Village of Westfield (41 App. Div. 24; affd., without opinion, 169 N. Y. 582) this rule seems to have been extended to an action brought to recover for work done and materials furnished under a contract. Mr. Justice Follett, wu-iting the Opinion of the court, says: .“ The' other items making up the recovery were unliquidated. Neither the quantities of the work performed nor the quantities of materials furnished for which the prices were agreed on had been ascertained, nor could they be readily .ascertained by the defendant, and the amount when ascertained was subject to a reduction for damages sustained by the defendant for improper performance by plaintiff of some of the work, and the amounts due.for extra work, for which prices were not agreed on, were clearly unascertainable without taking evidence. The claims recovered by the plaintiff were unliquidated.”

That case seems to have settled the question presented in this case ; and the referee erred in providing for the recovery of any amount of interest. The plaintiff was, however, entitled to have included in the recovery, under section 1.235 of the Code of Civil Procedure, interest upon the amount of principal damage from the time the report was made, which was presumably upon its date, to the date of the entry of the judgment. He, therefore, should have added to the recovery the interest upon the principal damage from February 15, 1901, the date of the report, to February 21, 1901, the date of the entry of the judgment, namely, the sum of $79.30 only. This necessarily reduces the recovery as contained in the • judgment entered by the sum of $8,477.551

The judgment should be accordingly modified, and as modified affirmed, without costs to eithér party.

Van Brunt, P. J., O’Brien and Hatch, JJ., concurred.

Judgment modified as directed in opinion, and as modified affirmed, without costs.  