
    ZIMMERMAN v. KLAUBER et al.
    (Supreme Court, Appellate Division, First Department.
    June 10, 1910.)
    Interest (§ 38)—'Amount Recoverable—Statutory Rate-
    Where parties stipulated for interest at a fixed rate until the principal sum is paid, that rate will prevail up to the date of entry of judgment, after which interest may be recovered only at the statutory rate; but, where a rate is provided without such limitation, the rate is determined as fixed by the contract up to the time of default, and thereafter at the legal rate as fixed by the statute.
    [Ed. Note.—For other cases, see Interest, Cent. Dig. §§ 79-82; Dec. Dig. § 38.*]
    Appeal from Special Term, New York County.
    Action by Leopold Zimmerman against Albina IClauber and others. Judgment for plaintiff for part only of relief demanded, and he appeals.
    Affirmed.
    The following is the opinion of Greenbaum, J., in the court below:
    Motion for judgment upon the pleadings. The action is for foreclosure of a mortgage, in which the rate of interest was stipulated at 4 per centum per annum “until the aforesaid principal sum shall be paid.” By the terms of the mortgage the principal became due on January 2, 1905. The complaint alleges the payment of interest at the rate of 4 per centum down to the 2d day of .January, 1909, and demands jpdgment for $20,000, the principal sum, with interest thereon from January 2, 1905, to January 2, 1909, at the rate of 2 per centum per annum, and interest at the rate of 6 per centum from January 2, 1909. The answer presents no issuable question of fact, and the only question that arises upon the pleadings is whether plaintiff is entitled to interest at the rate of 6 per centum from January 2, 1905, the due date of the mortgage. The authorities in this state touching the point under discussion might upon a superficial reading indicate that the plaintiff's contention is correct, 'but an analysis of the cases establishes _to my mind a contrary conclusion. The general rule is summed up in the recent case of Pryor v. City of Buffalo, 197 N. Y. 123,143, 90 N. E. 423, 429, as follows: “That the rate of interest is fixed by the contract to pay money up to the time of default, but after breach the rate of interest is determined, not by the contract, but by the statute.” The court cites the leading cases bearing upon this subject, among others Ferris v. Hard, 135 N. Y. 354, 32 N. E. 129, which was the case of a foreclosure of a mortgage which provided for the payment of the principal in form of annual installments, “and the sums remaining from time to time unpaid were to bear interest at 7 per cent.” The court held that if an installment were not paid when due the contract was violated, and interest after that upon such installment could only be recovered as damages and at the rate of interest authorized by law, citing Bennett v. Bates, 94 N. Y. 354, and O’Brien v. Young, 95 N. Y. 428, 47 Am. Rep. 64. In O’Brien v. .Young, supra, 95 N. Y., at page 430, 47 Am. Rep. 64, it is stated: “But when the contract provides that the interest shall be at a specified rate until "the principal shall be paid, then the contract governs until payment of the principal, or until the contract is merged in a judgment.” The opinion in Ferris v. Hard, supra, 135 N. Y., at page 365, 32 N. E., at page 132, expressly distinguishes the case then before the court from one where the agreement is “to pay interest, on a principal sum at 7 per cent, until the principal sum is paid, such as the case of Taylor v. Wing, 84 N. Y. 471, 477.” The rule deducible from these authorities seems to be that where the parties have stipulated for the payment of interest at a fixed rate “until the principal sum is paid,” that rate will prevail up to the date of entry of judgment, but where a rate of interest is provided for the payment of moneys without any such limitation as above quoted, the rate is determined as fixed by the contract up to the time of default and thereafter at the legal rate fixed by statute.
    It follows, therefore, that plaintiff is entitled to a decree of foreclosure for nonpayment of the principal sum of $20,000, with interest thereon at the rate of 4 per cent. Judgment will accordingly be directed.
    Argued before INGRAHAM, P. J., and McLAUGHLIN, SCOTT, CLARKE, and MILLER, JJ.
    A. Epstein, for appellant.
    A. J. McClure, for respondents.
    
      
      For other cases see sane topic & § number in Dec. &,Am. Digs. 1907 to date, & Rep’r'Indoxes
    
   PER CURIAM.

Order affirmed, with $10 costs and disbursements, on opinion in the court below. Order filed.  