Ernesto Foglino & Co., Inc., Appellant, v. Frank C. Webster and Others, Copartners Doing Business under the Firm Name and Style of Kidder, Peabody & Co., Respondents

Ernesto Foglino & Co., Inc., Appellant, v. Frank C. Webster and Others, Copartners Doing Business under the Firm Name and Style of Kidder, Peabody & Co., Respondents. (Appeal No. 2.) First Department, June 4, 1926. Pleadings — complaint — amendment to include demand for interest on damages — damages were determined by mathematical computation — amendment permitted. In an action to recover damages suffered by the plaintiff by the cancellation by the defendants of a letter of credit against a sale of coal, the plaintiff is entitled to amend his complaint so as to include a prayer for interest, since it appears that the damages allowed were a mere matter of mathematical computation. Appeal by the plaintiff, Ernesto Foglino & Co., Inc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 5th day of June, 1925, denying plaintiff’s motion to amend, the complaint so as to provide in the demand for judgment a prayer for interest. Avel B. Silverman of counsel [David Vorhaus with him on the brief; House, Grossman & Vorhaus, attorneys], for the appellant. Clifton P. Williamson of counsel [Edward W. Bourne with him on the brief; Alexander & Green, attorneys], for the respondents. [MAJORITY — Dowling, J.] Dowling, J. Under the theory of damages adopted by the learned trial court herein, the amount of damages was determined only after evidence had been received from a qualified witness as to the market price c. i. f. Italy during the period of thirty days after April 30, 1920. There is no evidence that such price was quoted in any newspapers or trade journals, nor that there was any method accessible to defendants, who were bankers, by which they could have ascertained the damage plaintiff had sustained, save by consulting experts, whose testimony ultimately would have had to be weighed by a trial court. I am of opinion that under the theory on which judgment was awarded, interest was properly denied. But under my accompanying opinion on the main appeal herein Foglino & Co., Inc., v. Webster, No. 1, 217 App. Div. 282), the damages were a mere matter of niathematical computation, reached by deducting the contract price for the coal to the Ministry from the contract price to be paid to the Coal Export Corporation, a mere clerical operation, subject to no outside elements whatever. Upon such damages, interest is properly awarded. (See Faber v. City of New York, 222 N. Y. 255.) Nor are the appellants in any way surprised by the award of judgment in the precise amount of $22,500, since in its bill of particulars respondent gave notice of alternative claims for damages, of which the first was: “ (a) In that the plaintiff was deprived of a profit of $1.50 approximately per ton, which it would have earned in accordance with its contract with the Coal Export Corporation.” The order appealed from should, therefore, be reversed, with ten dollars costs and disbursements, and the prayer for relief in the complaint amended so as to include a demand for interest upon the amount of the recovery, and the judgment as modified in the accompanying opinion of the court should include interest on the sum of $22,500 from April 30, 1920. Clarke, P. J., Merrell, McAvoy and Martin, JJ., concur. Order reversed, with ten dollars costs and disbursements, and motion granted so far as to amend complaint by including in the prayer for relief a demand for interest upon the amount of the recovery from the 30th day of April, 1920.