Opinion
Argued October 17, 1893
Decided November 28, 1893
George Hill for appellant.
George G. De Witt for respondents.
We agree with the General Term except in the matter of interest. Of the moneys sought to be recovered, $30,719.61 were deposited by the defendant on April 17th, 1890, in the Union Trust Company to his credit as executor and were to draw interest at the rate of three per cent per annum. On November 7th, 1890, plaintiff obtained an order in this action directing that these moneys remain on deposit with the trust company until the further order of the court, and enjoining the trust company meanwhile from making any transfer, payment or disposition of the money or any part thereof. The plaintiff, as a part of the relief prayed for in the complaint, demanded that pending the action the defendant be directed to deposit this money into the court, there to remain subject to the further order of the court, and in the judgment the defendant is directed to draw his check upon the trust company for the sum so deposited, with the accrued interest, in favor of the plaintiff, which the trust company is directed to pay upon presentation, the amount so paid to be credited to the defendant as a part payment of the judgment. The plaintiff having made claim to this particular fund, and having at his instance procured the court to enjoin the defendant from using the money in any other way than by continuing it on deposit with the trust company, cannot equitably charge the defendant with a greater sum for interest than the money has earned. From the time the order was obtained directing the money to remain on deposit with the trust company until the further order of the court, the money was in the custody of the court, and it was the equivalent of a payment into court to await final judgment in the cause.
The defendant has been made individually liable in this action; but it is clear that as to this part of the fund in controversy, it was never converted by him to his use, and the plaintiff has been permitted to recover it and its increase in specie.
We think the judgment should be modified by deducting therefrom the difference between three and six per cent interest from May 12, 1890, to March 29, 1892, the date of entry of judgment, being the sum of $1,733.09, and as so modified the judgment should be affirmed, without costs to either party in this court.
All concur.
Judgment accordingly.