106 N.Y.S. 616 | N.Y. App. Div. | 1907
The action in which the judgments referred to in the order were obtained was brought by plaintiffs, as receivers of the Bank of Commerce in Buffalo, against the respondents Gardner, Miller and the Gratwick executors, as defendants, with many others, to enforce'
It appeared that Chard had transferred all of his stock to Hefford. Gratwick and Gardner had transferred some of their stock to Hefford and the remainder to other parties. Respondent Miller had transferred all his stock to parties other thán Hefford.
The court by its decision determined that Chard,-Miller, Gardner and Gratwick’s executors and not their transferees were liable as /the holders and owners of the stock, and judgment was entered against them in the several amounts proportioned to the-shares of stock held by each, as provided by the' stipulation. They then appealed from the judgment and concurrently, as required by the stipulation, Chard paid to plaintiffs the total amount of the judgment against him; the defendants Gardner and Gratwick’s executors each paid the proportion'of the judgment against them, represented ■ by • the stock, which they had transferred to Hefford, and at the same time deposited with plaintiffs the several amounts representing the balance of "the judgments against them with interest, the defendant Miller also "depositing in like manner the amount of the judgment against him with interest thereon. The judgment was affirmed by the Appellate Division (113 App. Div. 597) and later by the Court of Appeals. (188 N. Y. 571.) On the final affirmance of the judgment these respondents tendered the amount of the two judgments for costs in the Appellate Division and the Court of Appeals, and demanded satisfaction of the judgments against them, including the original judgment. ' This was refused,- and they thereupon made application to the Special Term for an
It appears\that the'moneys deposited by respondents w-ith plaintiffs at the time the former took their appeal from the judgment has earned interest at a less rate than six per cent. Plaintiffs claim that the judgment -bears, interest at the rate of six percent per annum,'and that respondents are not entitledff-o a discharge of this first judgment- until the difference betw-een the amount of the deposit with the accumulated interest thereon and the amount of the judgment with interest at six per cent thereon shall be paid. This difference at the time the order was made was approximately $1,300. This claim presents- the question, the determination of which is involved in this appeal.
, That the owner of this judgment is entitled to insist on receiving interest at the rate of six per cent thereon, unless the right thereto is affected or modified by some fact or consideration, not appearing in the judgment itself,, is clear. (Code Civ. Proc. § 1211.) ' If this statutory right to that rate of interest, is -to be denied, the reason therefor must be sought in the fact that, respondents deposited with plaintiffs the amount of the judgment at the time the' appeal therefrom was taken, and thé understanding and. ágreement as to the effect and purpose thereof.. This deposit^ made by the debtors with the creditors, must necessarily, it would seem, be regarded-as made, , either as security for, or payment of, the indebtedness represented -.by the judgment.' That it was not made to, Or received by, plaintiffs as payment we conclude from the terms of. the stipulation pursuant to which it was. delivered to them. The stipulation recites that) as a condition of-appealing, from the judgment, the appellant must deposit with plaintiff' receivers' the amount of the judgment ■ appealed, from, to be held by them, and to be by them repaid in-case judgment shall finally go in favor of appellants. . Clearly this does not contemplate that the judgment was to be regarded as paid by the deposit. (Dinkel v. Wehle, 63 How. Pr. 298.) The .delivery of the money was upon condition .that it should be held, and in a certain event repaid. Such a deposit of money would not even ' be good as a tender. (Nelson v. Loder, 132 N. Y. 288.) Payment . is made by the debtor’s deliveripg to' his creditor' money., or some
We cannot agree with the suggestion of respondents’ counsel that by understanding and agreement of the parties there was to. be a substitution of. the deposit with its increment by way of interest' earned pending the appeal, in place of respondents’ liability on the judgment ; and that after the deposit it was the ultimate ownership of that fund and not the right to maintain the judgment that was to be determined on the appeal. We find .nothing, either in the stipulation itself, the judgments thereafter obtained in'the action, the decree settling the accounts of the receivers, or the understanding of the parties as evidenced by their conduct, which in any way tends to support that position. , ' ■
The order should be reversed, with ten dollars costs and disbursements-, and respondents’, motion denied, with ten dollars costs.
All concurred.
Order reversed, with ten dollars costs and- disbursements, and motion denied, with ten dollars costs.