A.M. Hazell, Inc. v. City of Long Beach

• Decision Date: 15 July 1931
• Citation: 177 N.E. 420,257 N.Y. 201
• Parties: A. M. HAZELL, Inc., v. CITY OF LONG BEACH.
• Court: New York Court of Appeals Court of Appeals

257 N.Y. 201

177 N.E. 420

A. M. HAZELL, Inc.,

v.CITY OF LONG BEACH.

Court of Appeals of New York.

July 15, 1931.

Action by A. M. Hazell, Inc., against the City of Long Beach. From a judgment of the Appellate Division (232 App. Div. 697, 247 N. Y. S. 950) reversing on the law and facts an order in defendant's favor, plaintiff appeals claiming an additional amount.

Judgment of Appellate Division modified and affirmed.

Appeal from Supreme Court, Appellate Division, Second department.

George W. Bristol, of New York City, for appellant.

David B. Tolins, Corp. Counsel, of New York City, for respondent.

PER CURIAM.

By a fair construction of the contract, article XLIII constitutes an exception to the rule as to the time of payment prescribed by article XLI and imposes on the defendant a duty to make payment from time to time to the extent of 85 per cent. of the value of the work done and materials furnished as established by intermediate certificates. This reading of the contract is in accord with the practical construction indicated by the conduct of the parties.

Demand for payment was made on November 26, 1928, in respect of the installments then due, and informally thereafter, through correspondence and otherwise, as to installments subsequently accruing.

The debt being established, interest from the date of the demand (Sweeny v. City of New York, 173 N. Y. 414, 66 N. E. 101) follows as an incident.

The judgment of the Appellate Division (232 App. Div. 697, 247 N. Y. S. 950) should be modified by striking out the provision that interest on the sum of $135,536.23 shall be computed from May 11, 1929, and by adding interest as follows: On $76,441.44 from November 26, 1928, and on the later installments as prayed for in the complaint, and, as so modified, the judgment should be affirmed, with costs to the appellant.

CARDOZO, C. J., and POUND, CRANE, LEHMAN, KELLOGG, O'BRIEN, and HUBBS, JJ., concur.

Judgment accordingly.