Gillespie v. Mayor

Interest, In ordinary cases acceptance of principal alone amounts to a waiver of interest. Where a corporation award apportions an amount between two persons, and those two litigate between themselves as to the rate of apportionment, and one notifies the corporation not to pay, this will excuse the corporation from payment of interest during the pendency of such litigation.

This case came before the court on an order to show cause why an injunction should not issue. The bill showed that the complainant had been the assignee of a lease of premises in New-York, and of which Ann Thomas had the fee; that, in widening Beaver street, the whole of the premises were taken by the corporation and an award in favor as well of the complainants as of the said Ann Thomas had been made, which, while it was correct as to gross amount, was, as the complainant alleged, wrong in the amount of apportionment as between himself and Ann Thomas ; and he accordingly sued out a writ of certiorari from the Supreme Court and then a writ of error, which was determined by affirmance. That at the time the amount embraced by the award was payable, the complainant went to the comptroller of the corporation, who stated that Mrs. Ann Thomas had given notice to the corporation not to pay the money, and also said that, as the complainant had carried up the proceedings by certiorari, therefore payment would not be made ; but that the complainant then stated to the comptroller that the latter reason ought not to prevent the complainant from receiving his money, because the certiorari was expressly for the purpose of settling rights between Mrs. Thomas and himself, without, in any way, drawing in question the sufficiency of the award as respected the whole sum awarded. That at this time, and while the writs were pending, the amount due to the complainant under the award was in the hands of the corporation, unaffected, and not subject to any deduction or Casualty. That heavy assessments were made upon the pro-petty and apportioned between the complainant and Ann Thomas ; and the corporation made deductions from the aforesaid award of benefit. That a bill in chancery was filed by Mrs. Thomas against the complainant’s receiving the amount awarded to him, and the corporation were made parties ; but, finally, it was agreed between him and Mrs. Thomas that he might receive from the corporation to the amount of five thousand dollars as part of the award, and which was accordingly paid. That then, for the first time, the comptroller informed the complainant that the corporation would not allow any interest on the award. That the excuse and pretence of the corporation for not allowing interest was that the corporation were, at all times, ready to pay and had the money on hand apart for that purpose ; bút the complainant charged that this was untrue, because they were, at the times referred to, borrowing money and paying interest) and frequently unable to pay their debts and even laborers; and he also charged that his moneys went into their general funds, and the amount in no way was set apart as pretended. That the corporation had made a levy upon his, the complainant’s goods and gave no=tice of selling; but he could "not, as he was advised, bring replevin. Prayer, that the corporation account and give the complainant credit for interest, and that, in the taking of such account, the complainant be charged with the amount of taxes ; and for an injunction to restrain the corporation from selling under their levy—with the general prayer. By way of showing cause, the comptroller, Mr. Alfred A. Smith, made an affidavit that the corporation were at all times able to pay the amount of the award ; that the saíne was fully paid as soon as the stay of proceedings was removed and consent given; and also that the defendants were at all times ready and willing to pay.