We think the town of Greenburgh is not liable to the contractors or their assignee for the costs and allowance which the commissioners composing the Warburton avenue extension commission were directed to pay in the mandamus proceeding as the result of *Page 504 personal dereliction. This requires the deduction from the judgment of $654.08 with interest from October 31, 1896, and $107.65 with interest from April 26, 1897.
We think also that interest upon the items of the plaintiff's recovery was erroneously compounded as of the date of the commencement of the action, and that simple interest only is to be allowed.
The judgment should be modified accordingly, and as modified affirmed, without costs.
HISCOCK, Ch. J., HOGAN, CARDOZO, POUND, McLAUGHLIN, CRANE and ANDREWS, JJ., concur.
Judgment accordingly.