#### Edward Fredrichs, Plaintiff, *v.*The City of New York, Defendant.

(Supreme Court, New York Trial Term,

May, 1899.)

New York city — Interest on an award under chapter 746 of Laws of 1894 — Demand.

Where the city of New York is required to pay an award, made ■ under chapter 746 of the Laws of 1894, within four calendar months after the report of the commissioners is confirmed, a demand, to set interest running, is well made on the day before the four months expired, instead of on the day after, the intervening day being Sunday; it appearing that the city did. not at the time take the objection that the demand was premature and that it thereafter delayed payment for a period of over seven months.

Action to recover interest on amount' of award.

G-. H. Rudolph, for plaintiff.

John Whalen (corporation counsel), for defendant.

*589McAdam, J.

The evident purpose of the demand required by section 4 of the Act of 1894 .(chap. 746) was to require the creditor to put the city in default in order to start the running of interest on the award made. The report of the commissioners was confirmed December 10, 1897, and by the statute the city is required to pay *“*within ” four calendar months thereafter. TChe four calendar months expired April 10, 1898, but that day being Sunday, the plaintiffs presented their claims for $21,000 (the amount of the award) to- the comptroller, on Saturday, April 9, 1898, and therein made demand that the award be paid, with interest from April 10, 1898, giving therewith a notice that in default of payment within thirty days thereafter suit would be brought to recover said award with lawful interest thereon. The principal sum awarded was, on November 14, 1898, paid to the plaintiffs, without interest, the defendant stipulating not to interpose the defense that the plaintiffs had- waived their right to interest by accepting the principal. The action is. to recover the interest that accrued on the money withheld from April 10, 1898, to November 10, 1898, when the principal was paid. The defense that the demand should have been served on Monday, April 11th, instead of Saturday, April 9th, is purely technical. If the city had specifically objected, at the time, that the demand was premature and should-not be made until Monday, April 11, 1898, the plaintiffs might have renewed the demand on that day and obviated all question. No such point was then taken, and it seems to have been assumed that the demand was timely. • At all events, the city gave the plaintiffs no opportunity to mend their hold, and the technicality' should not meet with favor now. If the city had tendered the award without interest, on Monday,' April 11, 1898,- the defense would, have been meritorious. But the city accepted the notice of claim and demand, retained it without objection and delayed the payment of the award until November 14, 1898, a period of over seven months, having the use, in the meantime, of the plaintiff’s money; and interest is always regarded as an incident of principal wrongfully withheld. Under the peculiar circumstances, it-must be held that the demand was a substantial compliance with the requirements of section 4, sufficient to start the running of interest from April 10, 1898, until November 10, 1898, when the principal sum was paid. There must be judgment in favor of the plaintiff.

Judgment for plaintiff.