Warren v. Banning
| Decision Date | 28 November 1893 |
| Citation | 140 N.Y. 227,35 N.E. 428 |
| Parties | WARREN et al. v. BANNING. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from supreme court, general term, first department.
Action by Mary C. Warren, as executrix, and George H. Warren and Lloyd Warren, as executors, of George Henry Warren, deceased, against William C. Banning individually and as executor of Abner Mellen, deceased, to recover earnest money paid on a contract for purchase of real estate. From a judgment of the general term (21 N. Y. Supp. 883) affirming a judgment for plaintiffs, defendant appeals. Affirmed.
George Hill, for appellant.
De Witt, Lockman & De. Witt, (George G. De Witt and Theodore De Witt, of counsel,) for respondents.
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 3 per cent. per annum. On November 7, 1890, plaintiff obtained an order in this action directing that these moveys 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 the equivalent of a payment into court to await final judgment in the cause.
The defendant has been made individually liable in this action, but...
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