December 4, 1963
Kleeberg Greenwald ( Jacob Greenwald of counsel), for plaintiffs.
Leo A. Larkin, Corporation Counsel, for defendant.
Upon the foregoing papers this motion is granted to the extent of striking out the answer and directing an assessment of the plaintiffs' damages. Under section 480 of the Civil Practice Act plaintiffs would have been entitled to interest, the action being one at law ( Village of Elmira Heights v. Town of Horseheads, 234 App. Div. 270, 274, affd. 260 N.Y. 507). Although subdivision (a) of section 5001 of the Civil Practice Law and Rules is differently worded, the Advisory Committee on Practice and Procedure notes to the section (§ 12.1, subd. [a]; Third Preliminary Report, March 1, 1959, p. 87) state "no change of meaning intended". Cases dealing with actions in equity, where interest is discretionary, are not in point. Plaintiffs will be entitled to interest at the rate of 3%, the amount fixed by section 3-a Gen. Mun. of the General Municipal Law.