
    George H. Lawrence and Others, as Executors, etc., of Elizabeth H. Sias, Deceased, Respondents, v. Edward M. Grout, as Comptroller of the City of New York, and Others, Defendants, Impleaded with George F. Binninger, as General Guardian of Regina Binninger and Others, Appellant.
    First Department,
    November 8, 1907.
    Contempt —payment into court with interest—legal rate required.
    When a party has been ordered to deposit money with interest with the chamberlain of the city to the credit of an action and, having failed to do so> is allowed to purge himself of contempt by making the deposit, the court is without power to fix a rate of interest less than six per cent.
    Appeal by the defendant, George F. Binninger, as general guardian, etc., from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 14th day of June, 1907, as directs that the plaintiffs deposit certain moneys with the chamberlain .of the city of New York to the credit of this action, together with interest thereon at the rate of two and one-half per cent from May 12, 1905.
    
      Louis Wendel, Jr., for the appellant.
    
      Henry C. Henderson, for the respondents.
   Per Curiam:

The order of this court in this action directed that the plaintiffs deposit to the credit of the action with the chamberlain of the city of New York the sum of $1,808.15, together with interest thereon from the 12th' day of May, 1905. They having Jailed to comply with that order the defendants moved at Special Term to punish them for contempt; The order was granted and they were adjudged guilty of contempt, but were permitted to purge themselves therefrom by depositing such money as directed, with interest thereon at the rate of two and one-half per cent. The defendant Binninger appeals from that part of the order fixing the rate of interest.

The term “with interest” appearing in the order of this court meant legal interest, which is six per cent per annum. The Special Term liad no right to fix a lesser rate or one which was earned by the money when in the hands- of the city chamberlain. The plaintiffs have had possession of the money and presumably the use of .it. When ordered to restore it with interest it was their duty to do so with interest at the legal rate.

The order appealed from should be modified by striking out the provision “ with .interest thereon, at the rate of two and oneffialf per cent” .and inserting in place thereof with interest'at the rate of' -six per cent,” ánd as so modified affirmed, with ten dollars .costs and disbursements to the appellant. ' .' '

Present — Patterson, P. J., Ingraham, Laughlin, Clarke and Houghton, JJ.

Order modified as directed in opinion and as modified affirmed, .with ten.dollars .costs and disbursements to appellant! Settle order on'notice. '  