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Case agt. Osborn.

stated, it is not perceived that Cecelia Schoen has any claim to subject the realty to the payment of her legacy.

If the executors have wasted the personal estate, her claim is against them. The motion is denied, with costs, and the purchaser must complete his purchase.


LORENZO CASE AND EDWARD E. Case, appellants, agt. JAMES

OSBORN, respondent.

Interest In action for work and labor done and materials furnished, from

what time interest to alloroed - Is demand necessary to entitle plaintif to interest from time of completion and acceptance of job.

In an action for work and labor done and materials furnished where the

facts as proved were that no time was fixed under the agreement with plaintiff when the job was to be completed – that the job was com

pleted and accepted by the defendant September 9, 1874: Held, that the bringing of suit was sufficient demand and plaintiffs were

entitled to interest from that time at least. On the above facts found was any demand necessary to entitle the plain

tiffs to interest on the amount of the recovery from the time the job was completed and accepted by defendant? Quære.

Fourth Department, General Term, January, 1880.

This action was brought to recover for work and labor done and for materials furnished by the plaintiffs, who were copartners and doing business in the city of Watertown as Carpenters and general house-joiners, in repairing a dwellinghouse for the defendant. The case was referred to one E. C. Emerson, as referee, and tried before him. In his report the referee found as facts: That the work was all done and materials furnished September 9, 1874, and that on the same day the defendant duly accepted said work and materials in accord

Case agt. Osborn.

ance with the terms of the contract. The referee so found that there was due the plaintiffs on that day, over and above all set-offs and counter-claims, the sum of forty-seven dollars and sixty-six cents, and ordered judgment for plaintiffs and against defendant for that amount. The referee also found that there was no demand made by plaintiffs for this amount, before bringing the action; that the claim was unliquidated; that as matter of law plaintiffs were not entitled to interest.

Anson B. Moore, attorney for appellants.

I. The referee finds as facts : 1. There was no time fixed under the agreement with plaintiff, when the job was to be completed. 2. That the job was completed and accepted by the defendant September 9, 1874. On the facts found by the referee no demand was necessary. The money was due when the job was completed and accepted; and the plaintiffs were entitled to interest on the amount found due them from that day, September 9, 1874 (Freter agt. Heath, 11 Wend., 479; Sill agt. Hall, 20 Wend., 51; Gillet agt. Van Rensselaer, 15 N. Y. R., 397; 2 Com., 134; 20 N. Y. R., 463–469; 8 Barb., 327–331). (a) For refusing to allow interest to the plaintiffs on the amount, forty-seven dollars and sixty-six cents, found their due on September 9, 1874, the judgment should be reversed.

II. If a demand was necessary before bringing the action to entitle the plaintiffs to interest, clearly the bringing of the action was a sufficient demand.

Allowing the interest on plaintiffs' claim from the commencement of the action to the time of filing the referee's report, would increase the damages to fifty-two dollars and eighty-six cents, and plaintiffs would recover the full costs of the action. The refusal of the referee to thus hold and decide is error for which the judgment should be reversed.

III. The referee erred in holding that no demand was made before bringing the action. The plaintiff swore to a demand, and this fact was not denied or disputed by any witness on

Case agt. Osborn.

the trial, yet the referee rejected this evidence and found that no demand was made.

Porter & Watts, attorneys for respondent.

I. The appellants ask for a reversal of the judgment in this case, on the sole ground that the referee erred in refusing to allow interest on their claim from the date of the completion and acceptance of the work, September 9, 1874.

The plaintiffs are not entitled to interest upon the amount of their recovery for any time, prior to the report and decision of the referee. The referee so decided, and upon every principle of equity, as well as upon the law and facts in this case, the referee is right (Gallop agt. Perue, 10 Hun, 525; 6 Cowen, 193; 4 Cowen, 496; 3 Cowen, 393-425; 5 Cowen, 588; 45 Barb., 40; 61 Barb., 180; 4 Barb., 36; 20 Wend., 52; 17 Barb., 454; 3 Johns. Ch., 587; 12 Johns., 156; 7 Wend., 178; 12 Abb. [N. S.], 240; 3 Hun, 218; 20 N. Y., 463; 45 N. Y., 306; 60 N. Y., 106). 1. The amount due plaintiffs was unliquidated and unsettled. No demand of payment had been made by plaintiffs of defendant, and the referee so finds. The referee also finds that no time of payment was agreed upon by the parties. 2. Interest is simply damages, and when allowed it is only as damages. It is submitted that the allowance of interest in any case is largely discretionary with the court or referee before whom the same is tried, and is to be determined upon the facts in each particular case, and such determination should not be disturbed unless there has been gross injustice done.

SMITH, J. Appeal from a judgment entered on the report of a referee. Action for work and labor. The referee found in plaintiffs' favor for forty-seven dollars and sixty-six cents, but denied them interest on the ground that no demand was made before suit. We think he erred in not allowing interest. Plaintiff testified that he called on defendant about six weeks after the work was completed and defendant said, in sub

Trow's Printing and Bookbinding Company agt. Hart.

stance, he would pay it when he got ready. Saw him once after that and told him he must come to plaintiffs' shop and settle the matter, and he made no answer. This testimony is not disputed. Besides, it is proved that the work was completed and accepted in September, 1874. Further, bringing snit was sufficient demand, and plaintiffs' were entitled to interest from that time at least.

Judgment reversed and new trial ordered before another referee, costs to abide event.

Mullin, P. J., and Talcott, J., concur.




Attachment Purchaser of attached property may move to vacate where

motion is made upon the papers on which warrant is granted, plaintiff cannot put additional affidavits in support of attachment An affidavit is insufficient which fails to state that plaintiff is entitled to recover the sum stated over and above all counter-claims known to him Code of Civil Procedurs, sections 636–682).

A purchaser, from a defendant in an action, of certain property against

which an attachment has been issued, may, under section 682 of the

Code of Civil Procedure, move to vacate the attachment. The attachment was properly vacated, on the ground that the affidavit

did not show that the plaintiff was entitled to recover a sum stated therein over and above all counter-claims known to him (Code of Civil

Procedure, sec 636). Where the motion to vacate the attachment is made upon the papers on

which the warrant is granted, the plaintiff cannot put in additional Affidavits in support of the attachment.

General Term, December, 1880.

APPEAL by plaintiff from order of special term of February 11, 1880, vacating attachment issued August 23, 1878, Trow's Printing and Bookbinding Company agt. Hart.

against the defendant's property in this action, under section 636 of the Code.

The motion to vacate the attachment was made by Nelson Sherwood, a purchaser from defendant of certain real estate, subject to the lien of the attachment.

J. F. Daly, J.- Any person who has acquired a lien upon or interest in the defendant's property after it was attached may, at any time before the actual application of the attached property or the proceeds thereof to the payment of a judgment recovered in the action, apply to vacate or modify the warrant, or to increase the security given by the plaintiff, or for one or more of those forms of relief, together or in the alternative. Such are the broad provisions of section 682 of the Code, and they are broad enough to include purchasers, assignees and other transferees of the attached property among those who may apply to vacate the attachment. A subsequent attaching or execution creditor may be described as a person who has acquired a lien, and so may a subsequent mortgagor; but the section enumerates, also, the persons who may have acquired an interest in the property, and the intention to extend the benefits of the provision to others besides attaching and judgment creditors of the judgment debtor is manifest. Any arguments based upon the inconvenience to the plaintiff arising from a multitude of motions on the part of different purchasers of portions of the attached property can have no weight against a plain statutory provision. The section under consideration (682) has received no interpretation from the courts as yet, in so far as the point above discussed is concerned. Judge ANDREWS, in Steuben County Bank agt. Alberger (56 How., 245), speaks of this section as extending to persons having liens on the attached property acquired subsequent to the attachment, the remedy was formerly confined to the defendant, to have the attachment vacated on motion, and speaks of the section providing that the defendant, or a lienor, * * may apply, and makes no mention

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