I dissent and vote to modify the order so as to award interest from July 3, 1919, the date of the demand, to July 28, 1919, the *665date of payment. (Matter of Mayor [Mount Vernon Avenue], 199 N. Y. 559.) The city on this appeal did not dispute the claim of the appellant that it was entitled in any event to interest between said dates. On the authority of Matter of Edelmuth v. Prendergast (202 N. Y. 602; 142 App. Div. 785) and Matter of City of New York [White Plains Road] (187 id. 355), the failure to demand interest, notwithstanding the pendency of the appeal from the final order of confirmation, deprived the appellant of interest for a period commencing six months after such confirmation until a demand was made. The appeal from the final order of confirmation in no wise benefited this appellant. On the contrary, the award to it was reduced by the direction of the payment of the Juilliard mortgage. Had the demand been made during the pendency of the appeal, I know of no reason why the city could not have met it by payment of the amount actually coming to the appellant, or a substantial portion thereof, in either of which cases the running of interest would have ceased accordingly. The city in making such payment could have reserved the right to restitution if the same proved to be an overpayment within the authorities of Matter of City of New York [Court House] (216 N. Y. 489) and Matter of Water Commissioners of White Plains (195 id. 502). The appellant did not succeed on its appeal from the final order of confirmation, and so far as it was concerned that order remained wholly unaffected by our subsequent modification. But for the necessity of modifying the order appealed from, to which I referred at the outset, I should have voted to affirm upon the opinion of Mr. Justice Hagarty at Special Term. (122 Misc. Rep. 109.)
Manning, J., concurs.
Order denying claimant’s motion for interest on an award reversed upon the law, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.