Lawrence v. Binninger — 106 N.Y.S. 500

Majority

p. 500

(121 App. Div. 701.)

LAWRENCE et al. v. BINNINGER et al.

(Supreme Court, Appellate Division, First Department.

November 8, 1907.)

Headnote

Deposits in Court—Interest—Construction op Order.

Where plaintiffs failed to comply with an order directing that they deposit with the New York city chamberlain a specified sum, “with interest” from May 12, 1905, to the credit of the action, and were thereupon adjudged in contempt, it was improper for the court to permit plaintiffs to purge themselves by depositing the amount directéd, with interest at 2% per cent-, as the words “with interest” meant interest at the legal rate of 6 per cent.

Appeal from Special Term, New York County.

Action by George H. Lawrence and others, as executors of the estate of Elizabeth H. Sias, deceased, against George F. Binninger and others. From that portion of an order directing plaintiff to deposit with the chamberlain of the city of New York certain moneys to the credit of the action, with interest at the rate of 2% per cent., defendants appeal. Modified and affirmed.

Argued before PATTERSON, P. J., and INGRAHAM, LAUGH - LIN, CLARKE, and HOUGHTON, JJ.

p. 501

Louis Wendel, Jr., for appellants.

Henry C. Henderson, for respondents.

The order of this court in this action directed that the plaintiffs deposit to the credit of the action with the chamberlain of the city of New York the sum of $1,808.15, together with interest thereon from the 12th day of May, 1905. They having failed to comply with that order, the defendants moved at Special Term to punish them for contempt. The order was granted and they were adjudged guilty of contempt, but were permitted to purge themselves therefrom by depositing such money as directed, with interest thereon at the rate of 2V<¡ per cent. The defendants appeal from that part of the order fixing the rate of interest.

The term “with interest,” appearing in the order of this court, meant legal interest, which is 6 per cent, per annum. The Special Term had no right to fix a lesser rate, or one which was earned by the money when in the hands of the city chamberlain. The plaintiffs have had possession of the money, and presumably the use of it. When ordered to restore it, with interest, it was their duty to do so, with interest at the legal rate.

The order appealed from should be modified, by striking out the provision "with 2y2 per cent, interest,” and inserting in place thereof “with interest at the rate of 6 per cent.,” and, as so modified, affirmed, with $10 costs and disbursements to the appellants.