I cannot agree with Judge HISCOCK that the special rule, to which he refers, has its proper application in the present case; namely, that a claim against a municipality draws interest only from the time of demand. This case is differentiated by its facts from the class of cases, in which such a rule is enforced. The salary attaching to the position of architectural draftsman, filled by the plaintiff, had been legally and duly fixed at $35 a week and, under the rules of the defendant, was payable monthly, on the last day of each month. He only received from the defendant these monthly payments at the rate of $30 a week. Thus, default was made by the defendant in the full payment of an indebtedness, fixed by the resolution of the board of *Page 89 aldermen and entered upon its books, when due by its own rules. The defendant is an independent corporation, with which the statute required no previous filing of any notice of claim, as in the case of the city, and its relations with the plaintiff were contractual. (Gunnison v. Board of Education, 176 N.Y. 11.) How can it be held, upon the peculiar facts of the case, that a demand was necessary to be shown for the portion of the salary withheld each month? It is true that there is no evidence upon the subject of any demand; but why should there have been? Each month that the plaintiff applied for the salary, then legally due him and payable by the terms of his employment, and received less than the amount so due him, the defendant was in default and wrongfully withheld from him a portion of the debt. Impliedly, there was involved in each of these monthly transactions a demand for what his engagement with the defendant entitled him to receive. To hold, in the absence from the record of proof of a formal demand each month for the five dollars a week withheld by the defendant, that a recovery of interest upon the amounts in default, and eventually recovered, is barred, seems to me to be an unreasonable application of the special rule. In the case ofDonnelly v. City of Brooklyn, (121 N.Y. 9, 19), which Judge HISCOCK cites, the opinion states the general rule to be that "when interest is not stipulated by contract, but default is made to pay a liquidated debt when due, interest is recoverable as damages from the date of default;" but holds, under the circumstances of the case, that it could not be said that "the sum for which the city was liable was so fixed and certain or the time of payment so definite that a period can, before demand, be accurately determined from which the interest shall commence to run." In the case of O'Keeffe v. City of New York, (176 N.Y. 297), the plaintiff did not make any demand for the payment of the installments, when due under his contract. Its authority cannot be *Page 90 controlling in this case against the board of education, with the peculiar facts to which I have called attention.
I think the courts below have decided correctly and that the judgment, as rendered, should be affirmed.
CULLEN, Ch. J., WERNER, COLLIN and CUDDEBACK, JJ., concur with HISCOCK, J.; GRAY, J., reads dissenting opinion; MILLER, J., not sitting.
Judgment accordingly.