70 A.D.2d 542 | N.Y. App. Div. | 1979
—Order, Supreme Court, Bronx County, entered June 27, 1978 in favor of plaintiff Pioneer against defendant Mew for the sum of $81,500, is unanimously modified, on the law and the facts, to adjudge that said plaintiff shall also recover from said defendant interest on said amount from June 13, 1977, at a rate to be fixed on the order to be settled hereon, and the judgment is otherwise affirmed, with costs on appeal to said plaintiff against said defendant. If plaintiff’s right to the fund was based on breach of contract, plaintiff was entitled to interest as a matter of law; if plaintiff’s right was based on its equitable claim "interest and the rate and date from which it shall be computed shall be in the court’s discretion.” (CPLR 5001, subd [a].) Applying the latter rule, we think that as defendant Mew had the'use of the money and plaintiff did not have the use of the money during the period of the dispute, plaintiff is