which the jury should find to be the value of the property destroyed and the injury to property not wholly destroyed. The record shows that counsel for the respective parties differed with respect to whether or not interest was recoverable, and counsel for the plaintiff suggested that it be left to the discretion of the court, and that appears to have been acquiesced in. The jury, by their verdict, however, not only fixed the value of the property destroyed, and the amount that other property not wholly destroyed was injured, after the lapse of a reasonable time after notice to enable the city to turn off the water, but rendered a verdict for that amount, "with interest." Thereupon the court, evidently acting on the concession of counsel when the case was submitted to the jury, computed the interest, and it was included in the recovery. No point is made with respect to the informality of the verdict, in that the jury did not compute the interest. The point presented by counsel for the appellant is that interest was not recoverable in any event; and this contention is predicated on the fact that the damages were unliquidated, and not capable of definite ascertainment until they were determined by the jury. On such state of facts, the rule is well settled in actions on contract that interest is not recoverable. Mansfield v. N. Y. C. & H. R. R. R. Co., 114 N. Y. 331, 21 N. E. 735, 4 L. R. A. 566; Gray v. Central Railroad of New Jersey, 157 N. Y. 483, 52 N. E. 555; People ex rel. Cranford Co. v. Willcox, 207 N. Y. 743, 101 N. E. 174; Excelsior Terra Cotta Co. v. Harde, 181 N. Y. 11, 73 N. E. 494, 106 Am. St. Rep. 493; Levering & Garrigues v. Central Holding Co., 165 App. Div. 174, 150 N. Y. Supp. 649. [3] No case in the Court of Appeals or Appellate Division or the General Term of the Supreme Court is cited, and we have found none, in which that rule has been applied to actions for damages. to property caused by negligence; but, on the contrary, in such actions the rule universally applied is that, in order to afford complete indemnity to the person whose property has been destroyed or damaged through the negligence of another, the jury, or the court, on a trial before the court without a jury, may in the discretion of the jury, or court, award interest also. Wilson v. City of Troy, 135 N. Y. 96, 32 N. E. 14, 18 L. R. A. 449, 31 Am. St. Rep. 817; Mairs v. Manhattan Real Estate Ass'n, 89 N. Y. 498; Duryee v. Mayor, etc., of New York, 96 N. Y. 477; Moore v. N. Y. Elevated Railroad Co., 126 N. Y. 671, 27 N. E. 791; Jamieson v. N. Y. & Rockaway Beach R. Co., 11 App. Div. 50, 42 N. Y. Supp. 915; Brush v. Long Island R. R. Co., 10 App. Div. 535, 42 N. Y. Supp. 103; see, also, R. & P. R. Co. v. Balthaser, 126 Pa. 1, 17 Atl. 518. On principle it would seem that this is the correct rule, for while it would be unjust in an action for breach of contract, where the damages are incapable of ascertainment, to require the defendant to pay interest for his failure to pay unliquidated damages, there is no injustice in awarding interest against a party who wrongfully or negligently destroys or injures the property of another; and in actions for trover, trespass, and replevin, interest is recoverable as matter of 162 N.Y.S.-26 right. Lakeside Paper Co. v. State of New York, 55 App. Div. 208, 66 N. Y. Supp. 959; Parrott v. Knickerbocker & N. Y. Ice Cos., 46 N. Y. 361. Interest was, therefore, properly awarded in the discretion of the jury. It follows that the judgment and order should be affirmed, with costs. Order filed. All concur. (97 Misc. Rep. 646) KRAUSS v. RICHARD CARVEL CO., Inc. (Supreme Court, Appellate Term, First Department. December 29, 1916.) MUNICIPAL CORPORATIONS 809(2)—STREET ACCIDENT. In action against a subway contractor for personal injuries from slipping on a gas pipe in the gutter along the subway excavation, the fact that defendant had not yet assumed possession of the excavation, but that another contractor, intending to assign it to him, had not yet done so, barred recovery for plaintiff. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1689; Dec. Dig. 809(2).] Appeal from Municipal Court, Borough of the Bronx, Second District. Action by Katherine Krauss against the Richard Carvel Company, Incorporated. From judgment of the Municipal Court for plaintiff, after trial before the court without a jury, defendant appeals. Reversed, and new trial ordered. Argued November term, 1916, before LEHMAN, WHITAKER, and FINCH, JJ. Giffin & Hannon, of New York City (John W. Hannon, of New York City, of counsel), for appellant. Cornelius J. Earley, of New York City, for respondent. FINCH, J. The action is for personal injuries caused by slipping on a gas pipe in the gutter along the line of the subway excavation. Plaintiff testified that she was attempting to step upon the sidewalk, and put her foot on top of the pipe, which had been laid along the gutter; that the pipe was very smooth and slippery; and that there was a five-inch space between it and the curb. She said her foot slipped into this space, and she fell down and sustained a sprained ankle. Without passing upon the question of negligence, there is no evidence to sustain a finding that the defendant was responsible. The contract for this portion of the subway had been originally let to the John F. Stevens Construction Company, which had gone into bankruptcy, and on October 23, 1913, the latter's trustee in bankruptcy had made an assignment of the contract to the defendant, under an agreement that the assignment was not to become operative until the sureties on the original contractor's bond had consented, and that the trustee was to turn over the plant and excavation in workFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes able condition. The accident happened on November 8, 1913, and the uncontradicted testimony is that at that time defendant had not yet assumed possession of the plant and excavation, but that, on the contrary, employés of the trustee were still in possession making them ready to turn over in accordance with the contract. Furthermore, it does not appear that the sureties on the bond had consented to the assignment. For the foregoing reasons, the judgment is reversed, and a new trial ordered, with $30 costs to appellant to abide the event. concur. All BLUMENTHAL v. ALEXANDER et al. (Supreme Court, Appellate Division, First Department. December 29, 1916.) COSTS 110(1)-SECURITY FOR PAYMENT GUARDIAN AD LITEM. Under Code Civ. Proc. § 3268, providing that security for costs may be required where plaintiff is nonresident, and section 469, making a guardian ad litem liable for costs, a resident guardian ad litem, suing in behalf of a nonresident infant, is not required to give security for costs. [Ed. Note.-For other cases, see Costs, Cent. Dig. § 527; Dec. Dig. 110(1).] Appeal from Special Term, New York County. Action by Joseph Blumenthal, an infant, suing by a guardian ad litem, against Morris G. Alexander and K. Kaufmann & Co., Incorporated. From an order of the Special Term denying plaintiff's motion to vacate an order requiring plaintiff to give security for costs, and from an order denying a resettlement of such order, plaintiff appeals. Reversed, and motion granted. Argued before CLARKE, P. J., and LAUGHLIN, DOWLING, SMITH, and DAVIS, JJ. Emanuel A. Stern, of New York City, for appellant. Irving S. Ottenberg, of New York City, for respondents. SMITH, J. This action is brought by a guardian ad litem, a resident of this state, in behalf of an infant plaintiff, a nonresident of the state. By section 3268 of the Code of Civil Procedure it is provided that where the plaintiff resides without the state security for costs. may be required by the defendant. By section 469 of the Code of Civil Procedure the guardian ad litem is liable for the costs of the action chargeable against the plaintiff, and is required to be financially responsible therefor, and in Tropeano, by Guardian ad Litem, v. Grimaldi, 173 App. Div. 534, 159 N. Y. Supp. 1025, it has been held. that, if the guardian ad litem be not financially responsible, his appointment may be vacated upon defendant s motion. With a resident guardian ad litem of sufficient financial ability to answer for any costs charged against the plaintiff, the defendant needs no further security, and has the full protection which it is the design of the statute to give to him. For the purposes of this statute, therefore, the guardian ad litem may be deemed the plaintiff in this action, and, as he is a resi For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes dent of the state, the statute invoked does not apply. This was so ruled by Justice Pound at an Equity Term in Erie county, reported in Crossett et al. v. Dean, 69 Misc. Rep. at page 69, 124 N. Y. Supp. 916, which ruling was cited with approval in the Tropeano Case above referred to. The order should therefore be reversed, with $10 costs and disbursements, and the motion granted, without costs. Order filed. All concur. WASTE COATES, BENNETT & REIDENBACH, Inc., v. RUSSELL. 18-ACTION-TREBLE DAMAGES-STATUTE. In an action on a complaint charging waste, and the severing of fixtures from a building and their conversion, which proceeded at the trial upon the second cause of action both in respect to the proof and to the measure of damages, the plaintiff was limited in his recovery to such an amount as the jury might determine to be the actual value of the property removed, as instructed by the court, and was not entitled to an award of treble damages under Code Civ. Proc. § 1655, allowing such damages in actions against tenant of particular estate for waste. [Ed. Note.-For other cases, see Waste, Cent. Dig. §§ 44, 45; Dec. Dig. 18.] Action by Coates, Bennett & Reidenbach, Incorporated, against F. Dean Russell. Judgment for plaintiff, and he moves for an award of treble damages under Code Civ. Proc. § 1655. Motion denied. C. A. Crandall, of Rochester, for plaintiff. SAWYER, J. Upon a trial by jury plaintiff has recovered a verdict for $77.50, and now moves for an award of treble damages under the authority of section 1655 of the Code of Civil Procedure. The complaint sets forth two causes of action. First, for waste; second, for the severing by plaintiff of certain alleged fixtures from plaintiff's building and the conversion of same to his own use. The trial proceeded upon the theory advanced in the second cause of action, and plaintiff confined his proof of damage to the value of the articles removed; no evidence being submitted as to the damage to the freehold. The trial justice, accepting that theory, in response to one of plaintiff's requests to charge, established the law of the case as follows: "You are entitled to consider the cost of putting it [the property] back, but cannot render any verdict for any waste, because there is no proof of waste." This, of course, is to be read in connection with the statement, made at the outset of the charge: "This case has been tried upon the theory by both defendant and plaintiff that the damage to which the plaintiff was entitled, if he was entitled to anything, was the value of this particular property." Plaintiff acquiesced without exception in both these statements thus confirming the court's impression as to the nature of the relief sought, For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes and thereby limited his recovery, if any, to such an amount as the jury might determine to be the actual value of the property removed. Under such circumstances, I think him not entitled to an award of treble damages. Motion is denied. PEOPLE ex rel. NEW YORK & N. S. TRACTION CO. v. PUBLIC SERVICE COMMISSION OF STATE OF NEW YORK FOR SECOND DISTRICT. (Supreme Court, Appellate Division, Third Department. December 28, 1916.) 1. CARRIERS 12(4)-RATES-POWER OF COMMISSION. Under Public Service Commissions Law (Consol. Laws, c. 48) § 49, authority of the Commission is not confined to decreasing rates of fare charged by a railroad, but it can increase them. [Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 10, 15-20; Dec. Dig. 12(4).] 2. CARRIERS 12(4)-CONSTRUCTION-CONDITION BY LOCAL AUTHORITIES—. RATES. Regulation of rates of carriers being a legislative function, and so, under Const. art. 3, § 1, for the Legislature, the condition imposed by local authorities, in granting their necessary consent under section 18 for construction and operation of a street railroad, that it should charge no more than a certain rate, is unauthorized, and so does not prevent the Public Service Commission fixing a higher rate. [Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 10, 15-20; Dec. Dig. 12(4).] Howard, J., dissenting. Certiorari by the People, on relation of the New York & North Shore Traction Company, against the Public Service Commission of the State of New York for the Second District, to review its action in denying application of relator that it determine the just and reasonable rate to be charged for a continuous trip between Mineola and Port Washington, Nassau county, is 15 cents instead of 10 cents, as charged. Determination annulled, and proceeding remitted to Commission for further action. Argued before KELLOGG, P. J., and LYON, HOWARD, WOODWARD, and COCHRANE, JJ. James A. MacElhinny, of New York City, for relator. LYON, J. In March, 1907, the relator, then bearing the name of the Mineola, Roslyn & Port Washington Traction Company, applied to the board of supervisors of Nassau county, N. Y., and to the board of highway commissioners of the town of North Hempstead, in that county, for their consent that said traction company construct, maintain, and operate an electric street surface railroad between Mineola and Port Washington, in said county and town. Each of said boards granted such consent upon certain conditions, which said traction com For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |