
    GEORGE C. GENET, Appellant, v. BENJAMIN KISSAM, et al., Respondents.
    
      Interest —Demurrer.
    
    A bond and mortgage was made in 1868, dated November 4,1868, to secure the payment of $10,000 payable, at three years from date, with interest at the rate of seven per cent, per annum, payable quarterly.—Held, that interest ran at seven per cent, until the principal was paid.
    The plaintiff demurred to the answer. Held, that on the demurrer, the sufficiency of the complaint might be attacked; and it being found insufficient, the demurrer was overruled, without inquiring into the sufficiency of the answer.
    Before Sedgwick, Ch. J., Van Vorst and Freedman, JJ.
    
      Decided January 4, 1886.
    Appeal by plaintiff from a judgment entered against him upon a decision made on a trial at special term, of issues of law raised by a demurrer interposed by him to the first defense set up in the separate answer of the defendant Charles H. Town, on the ground that it is insufficient in law, upon the face thereof; and by a demurrer interposed by him to the first defense contained in the separate answer of the defendant Be j amis T. Kissam, on the same ground.
    The issues were tried before His Honor George L. Ingraham, who wrote as follows :
    
      “This action is brought to recover the difference between the amount of interest at the rate of six per cent., as provided for by chapter 538 of the Laws of 1879, and seven per cent., the amount paid by plaintiff to the defendants as trustees on a certain mortgage held by them as such trustees, and which mortgage had become due prior to January 1, 1880. The complaint alleges that plaintiff offered interest at the rate of six per cent, after January 1, 1880, as provided by the act of 1879, which was refused by the defendants, who demanded interest at the rate of seven per cent., whereupon the plaintiff paid interest at the rate of seven per cent., under protest, until July 15, 1881, when the principal amount and interest up to that time was paid.
    “ The mortgage was dated November 4, 1868, and was given to secure the payment of $10,000, three years from date, with interest at seven per cent., payable quarterly.
    “ It was held in the case of O’Brien v. Young (95 N. Y. 428), when the contract provides that the interest shall be a specified rate until the principal shall be paid, then the contract rate governs until payment of the principal, or until the contract is merged in a judgment, and where one contracts to pay money on demand with interest, or to pay money generally with interest, without specifying the time of payment, the statutory rate then existing becomes the contract rate, and must govern until payment, or at least until demand and actual default, as the parties must have so intended.” This decision seems to be conclusive0as against the right of plaintiff to recover in this action. The bond to secure which the mortgage was given as alleged in the complaint, was conditioned for the payment of the principal sum, with interest at the rate of seven per cent, per annum, payable quarterly.
    “The court in the case of Bennett v. Bates (94 N. Y. 354), relied on by plaintiff, does not appear to have considered the question as to the rate of interest subsequent to 1880, after the mortgage became due, but, so far as it is an authority in favor of the plaintiff, it must be considered overruled by the case of O’Brien v. Young (supra).
    
    “On a demurrer to an answer, the defendant may show that on the face of the record, plaintiff is not entitled to final judgment (Parsons v. Hays, 50 Super. Ct. 29).
    “The demurrers must be overruled, and judgment ordered for defendants on the demurrers with costs, with leave to plaintiff to withdraw demurrers, on payment of costs.”
    
      Albert B. Genet, attorney, and of counsel for appellant,
    on the questions considered in the opinion, argued :— The legal rate of interest after January 1, 1880, was six per cent. (Bennett v. Bates, 94 N. Y. 374 ; O’Brien v. Young, 95 Ib. 425). The case at bar falls within the first cited case, and the reasoning of the second one; for the principal sum fell due and became payable three years from November 4, 1868, and there was no covenant in it to pay interest at seven per cent, until the principal should be paid. The absence of such a covenant takes the case out of the scope of the remarks made by Earl, J., in O’Brien v. Young (95 N. Y. 428-430), cited by the court below.
    
      John E. Ellison, attorney, and Charles A. Jackson, of counsel for respondents,
    on the questions considered in the opinion, argued: I. The act of 1879 (ch. 538), fixing interest at six per cent., has no application to this case (Salter v. Utica & Black River R. R. Co., 86 N. Y. 403 ; Randall v. Sackett, 77 Ib. 482 ; Association for Relief, &c. v. Eagleson, 60 How. 9 ; S. C., 3 Law Bull. 8 ; Erwin v. Neversink St. Boat Co., 23 Hun, 578 ; S. C., 11 Week. Dig. 372; Henken v. James, 16 Ib. 33; Rouse v. Northern Ins. Co., 12 Ib. 85 : O’Brien v. Young, 95 N. Y. 428).
    II. The defendants have a right to attack the complaint for insufficiency (People v. Booth, 32 N. Y. 398 ; Parsons v. Hays, 50 Super. Ct. 32).
   Per Curiam.

Judgment affirmed, with costs, upon the opinion of Judge Ingraham at special term.

See further : Erwin v. Neversink St. Boat Co., 23 Hun, 578 ; Henken v. James, 16 Week. Dig. 33 ; Rouse v. Northern Ins. Co., 12 Ib. 85).  