Rodevick v. O'Brien , 4 A.D.2d 756 ( 1957 )

Appeal from an order granting appellant’s motion for entry of judgment in his favor in the amount awarded by the trial court together with interest, insofar as said order directs the addition of interest only from November 8, 1955, the date of the commencement of the action, and from the judgment entered thereon. Order and judgment, insofar as appealed from, unanimously affirmed, with $10 costs and disbursements. The trial court awarded appellant a specified sum, in addition to amounts he had previously received, for the fair and reasonable value of work, labor, services and materials furnished by appellant to respondents in the construction of a house. The court granted credit to respondents on a counterclaim and offset and stated that the building was substantially completed in December, 1952 and that respondents, after service of a 10-day notice to proceed, procured the services of another contractor who corrected certain defects and completed the construction. It stated that “ Whether the delay in construction was due to the [appellant! or whether it was caused by failure to make payments on the contract by the [respondents! is unsolved.” The record on appeal contains neither the pleadings nor the minutes of the trial. The trial court was specific in ruling that it did not find that respondents breached their contract. The record does not indicate when respondents’ subsequent contractor corrected the defects and completed the construction nor does it indicate the nature of said defects and the amount of construction necessary. Upon this record we cannot say that respondents breached their contract or that they were held liable on the theory that they had committed a breach. We may not overrule the determination that interest should be awarded only from the date of the commencement of the action (Aronowsky v. Goldberger-Baabin Co., 250 App. Div. 731; LeehoTce Corp. v. Plastoid Corp., 193 Mise. 208, affd. 276 App. Div. 903; Grattan v. Societa Cantoni, 2 Mise 2d 861, 874; see, e.g., Excelsior Terra Cotta Co. v. Sarde, 181 N. Y. 11 [decided prior to amdt. of Civ. Prae. Act, § 480 by L. 1927, eh. 623]). Present — Nolan, P. J., Wenzel, Murphy, Ughetta and Hallinan, JJ.