
    Mary C. Warren et al., Ex’rs, Resp’ts, v. William C. Banning, Individually and as Ex’r, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed November 28, 1893.)
    
    Vendor and purchaser—Interest.
    Where the money received by an executor on a sale of land has been, deposited with a trust company at a smaller rate of interest than that, allowed by law, and the vendee, in an action to recover back the money on the ground of a want of authority in executor to sell, procures an order directing such moneys to remain on deposit until further order, and enjoining any transfer or disposition thereof, the defendant cannot be charged with a greater sum for interest than the money has earned.
    Appeal from judgment of the supreme court., general term, first department, affirming judgment in favor of plaintiffs against the defendant individually, and directing that he draw his check as executor on the trust company for the amount received on the-sale, and that the trust company pay said sum and interest.
    Action to recover back moneys paid by plaintiffs’ testator on a-purchase of land from defendant as executor on the ground that the title was defective,* and that defendant was guilty of bad faith in making the sale without disclosing the fact that litigations in-respect to the title were then pending.
    
      George Hill, for app’lt; George G. De Witt, for resp’ts.
    
      
      Modifying 50 St. Rep., 810
    
   Per Curiam.

We agree with the general term except in the-matter of interest. Of the moneys sought to be recovered, $30,-719.61 were deposited by the' defendant on April 17, 1890, in-the Union Trust Company to his credit as executor and were to draw interest at the rate of three per cent per annum. On November 7, 1890, plaintiff obtained an order in this action directing that these moneys remain on deposit with the trust company until the further order of the court, and enjoining the trust company meanwhile from making any transfer, payment or disposition of the money or any part thereof. The plaintiff, as a part- of the relief prayed for in the complaint, demanded that pending the action the defendant be directed to deposit this money into the court, there to remain subject to the further order of the court, -and in the judgment the defendant is directed to draw his check upon the trust company for the sum so deposited, with the accrued interest, in favor of the plaintiff, which the trust company is directed to pay upon presentation, the amount so paid to be credited to the defendant as a part payment of the judgment. The plaintiff having made claim to this particular fund, and having at his instance procured the court to enjoin the defendant. from using the money in any other way than by continuing it on deposit with the trust company, cannot equitably charge the defendant with a greater sum for interest than the money has earned. From the time the order was obtained directing the money to remain on deposit with the trust company until the further order of the court the money was in the custody of the court, and it was tire equivalent oí a payment into court to await final judgment in the cause.

The defendant has been made individually liable in this action j but it is clear that as to his part of the fund in controversy, it was never converted by him to his use, and the plaintiff has been permitted to recover it and its increase in specie.

We think the judgment should be modified by deducting therefrom the difference between three and six per cent interest from' May 12, 1890, to March 29, 1892, the date of entry of judgment, being the sum of $1,733.09, and as so modified the judgment should be affirmed, without costs to either party in this court.

All concur.  