Opinion
November 8, 1907.
Louis Wendel, Jr., for the appellant.
Henry C. Henderson, for the respondents.
Present — PATTERSON, P.J., INGRAHAM, LAUGHLIN, CLARKE and HOUGHTON, JJ.
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 two and one-half per cent. The defendant Binninger appeals 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 six 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 interest thereon at the rate of two and one-half per cent" and inserting in place thereof "with interest at the rate of six per cent," and as so modified affirmed, with ten dollars costs and disbursements to the appellant.
Order modified as directed in opinion and as modified affirmed, with ten dollars costs and disbursements to appellant. Settle order on notice.