#### John F. O’Rourke, Respondent, *v.*The City of New York, Appellant.

First Department,

March 5, 1909.

Contract — damages — interest — release.

Where a municipal contract provides that nothing shall be due until the completion of the work and the issuance of the final certificate except that the city shall advance eighty per cent of the progress certificates from time to time in order to enable the contractor to prosecute the work, he is not entitled to recover interest on the twenty per cent while retained during the progress of the work, although the completion was delayed by the city.

Especially is this true where the retained percentage was paid in full on the completion of the work and the contractor executed a release.

Appeal by the defendant, The City of- Mew York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of ISTew York on the 28th day of February, 1907, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 14th day of March, 1907, denying the defendant’s motion for a new trial made upon the minutes.

*Terence Farley*of counsel *[Theodore Connoly*with him on the brief], *Francis K. Pendleton, Corporation Counsel,*for the appellant.

*L. Laflin Kellogg*of counsel *[Alfred C. Petté*with him on the brief], *Kellogg & Rose,*attorneys, for the respondent.

Clarke, J.:

The action was brought to recover the sum of $53,120.48 damages for delay and increased cost alleged to have been occasioned by the wrongful acts and interference of the defendant in the prosecution of the work of constructing a bridge and its approaches between Pelham Bay Park and City Island, in the twenty-fourth ward of the. city of Mew York, under a contract between the plaintiff and defendant.

The complaint contained three causes of action, the first of which was taken from the consideration of the jury. The jury returnéd a verdict on the second cause of action for $13,764.11, and for *674$8,209.48 on the third cause of action. The third cause of action was to recover damages for increased cost of performing the work caused by the action of the city in ordering a cessation of the work on the City Island approach for a number of months and then directing its continuance after changes in the condition had made the prosecution thereof more difficult and expensive. As á distinct item of damage under this cause of action was a claim for $2,205.14, interest. The- contract provided that nothing was to be due thereunder until the completion of the work and the issuance of the final certificate, but in order to enable the contractor to prosecute the work advantageously the city agreed to pay eighty per cent of the amount of progress certificates, provided the value of the work, certified by such certificates should amount to $2,000. The - city paid said amounts from time to time and finally upon completion, and the making of the- final certificate, paid the full amount which it admitted' to be due and received a release therefor. The claim in question is for interest at six per cent upon the twenty per cent of the amount of the progress certificates retained, as provided in the contract until completion. Those progress certificates were mere estimates of the amount of work done, were in no sense final or conclusive, and were made for the benefit of the contractm’. These retained percentages were not in any event due until the ,completion of the work and we are unable to see any basis upon which, interest can be charged upon sums not due. Furthermore, the principal upon which this interest is claimed, to wit, these retained twenty percentages, has been paid in full and the plaintiff has executed a release therefor. Interest cannot thereafter be claimed upon a principal sum paid in full and a release therefor given. The item under consideration is not interest on the amount sued for in this ease but is interest on an amount which has been paid.

The learned court charged the jury as follows : “ He claims interest of $2,205.14 on payments due him under the contract but withheld during the period- of that delay. If he is responsible for that delay, you will refuse to give him that interest; if he is not, you will award it to him.” As the jury found that he was not responsible for that delay, they must, under that instruction, have included this amount jn the verdict which they returned upon the third cause, of action.

*675The judgment and order should, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event, unless the plaintiff will stipulate to reduce the 'verdict by the sum of $2,205.14, in which event the judgment as so modified and the order appealed from will be affirmed, without costs in this court to either party.

Pattebson, P. J., Ingbaham, Laughlin and Soott, JJ., concurred.

Judgment and order reversed and new trial ordered, with costs to appellant to abide event, unless plaintiff stipulates to reduce the verdict by the sum of $2,205.14, in which event the judgment as so modified and order affirmed, without costs in this court to either party.' Settle order on notice.