Opinion
June 21, 1955.
Judgment unanimously modified so as to provide for interest to run against defendant, the City of New York, from January 18, 1950, and, as so modified, affirmed, with costs to the respondent. On the evidence, the jury could reasonably have resolved the issue of negligence and contributory negligence in favor of plaintiff as against all defendants. The trial court properly allowed interest to plaintiff, as a matter of law. Such an allowance has been recognized in an action for injury to property through negligence ( Flamm v. Noble, 296 N.Y. 262, 269; Squibb Sons Inter-Amer. Corp. v. Springmeier Shipping Co., 194 Misc. 813; A.L. Russell, Inc., v. City of New York, 138 N.Y.S.2d 455). As to defendant City of New York, however, it is conceded by plaintiff that interest should have been allowed only from the date when demand was made upon the comptroller, namely, January 18, 1950 (cf. Rapid T. Subway Constr. Co. v. City of New York, 259 N.Y. 472, 495). Settle order on notice.
Concur — Peck, P.J., Cohn, Callahan, Breitel and Bastow, JJ.