In this action for a declaratory judgment, submitted upon an agreed statement of facts, plaintiffs appeal from the judgment declaring that defendant is entitled to interest, in accordance with the terms of the mortgage concerned, at the rate of “ five per centum (5%) per annum on the sum of Forty- thousand ($40,000.00) dollars from September 19, 1941 to February 20, 1942, in the sum of Eight hundred thirty-nine and 05/100 ($839.05) dollars.” Plaintiffs were the fee owners of the property involved, subject to a mortgage held by the defendant in the sum of $41,200. Title vested in the United States Government by condemnation on the 19th day of September, 1941, at which time there was deposited with the Registry of the United States District Court, Eastern District of New York, the sum of $40,000 as compensation for said property. Subsequently, plaintiffs were awarded the sum of $65,000, with interest at 6% from the 19th day of September, 1941, only on that part of the award over $40,000, the amount deposited with the Registry of the court. Interest stopped running as against the United States Government on the amount deposited. Pursuant to a motion made by plaintiffs for the payment of the said sum of $40,000 to them, in which the defendant appeared and opposed, demanding payment of that amount to it on account of its mortgage', an order was made on the 4th day of February, 1942, directing that payment be made to it. Subsequently, and pursuant to the order, payment was made to it by the clerk of the court on the 20th day of February, 1942.
We are of opinion that, upon the facts submitted, the defendant is entitled to interest from the time of the vesting of title until, by affirmative action, it substituted the award, pro tanto, for the contractual obligation (Muldoon v. Mid-Bronx Holding Corp., 287 N. Y. 227, 231), which was the date of the making of the order on February 4, 1942. To that extent the judgment *436should be modified on the law and, as modified, should be affirmed, without costs.