(concurring). I concur with the majority that plaintiffs are entitled to prejudgment interest of only 6%, the rate fixed by General Municipal Law § 3-a (2). I write separately to address the dissent’s contention that the city is "estopped from relitigating” the lawfulness of the 6% rate, the issue having been decided against it in Matter of City of New York (Brookfield Refrig. Corp.) (58 NY2d 532). The very same argument was made by the claimant in Adventurers Whitestone Corp. v City of New York (65 NY2d 83, 86, 88, appeal dismissed — US —, 88 L Ed 2d 276) to no avail. Rejection of this argument necessarily implies that challenges to the statutory rate be entertained only on a case-by-case basis, upon proof specific not only to the period of the delay between the taking and the judgment, but also to the particular claimants and parcel involved. Such challenges to the statutory rate, Adventurers Whitestone also makes clear, must be made in the condemnation proceeding (supra, at pp 85, 86-87), unless there is " 'an express agreement between the parties that the question as to the right to recover interest should be reserved and determined by an action to be brought by plaintifF ” (supra, at p 90, quoting Grote v City of New York, 190 NY 235, 237). The dissent finds such an agreement in the parties’ use of the word "lawful” to qualify the city’s obligation to pay prejudgment interest, but, aside from the ambiguity of the word itself, the circumstances show otherwise. At the time the parties entered into their stipulation providing for payment of "lawful interest”, Brookfield was pending before Special Term, known to *249the condemnation Bar according to plaintiffs, and understood by the latter to involve the constitutionality, or "lawfulness”, of the statutory rate. As much is apparent from the demand plaintiffs made for payment of 9% interest, as well as by the complaint itself, both of which were predicated on Brookfield’s ostensibly preclusive effect. It must be, therefore, that the reference to "lawful interest” in the stipulation was intended, at least as far as plaintiffs were concerned, not as a reservation of the right to litigate the amount of prejudgment interest in a second action, but rather to secure to plaintiffs the benefit of whatever binding effect Brookfield might be found to have. That Brookfield has no such effect — that it was not, as plaintiffs thought it would be, a declaration on the constitutionality of the statutory rate — is made clear by Adventurers Whitestone. Not only is the statutory rate perfectly "lawful”, but, moreover, it continues to be "presumptively reasonable”, and nothing in Brookfield should be read as undermining that presumption. Put otherwise, the parties tied plaintiffs’ right to interest at a rate higher than that provided by the statute to the impact of the then-pending Brookfield case, each confident of the opposite result. The city’s prognostication having been validated, it should now prevail here. As Justice Holmes wrote in The Path of the Law (10 Harv L Rev 457, 460): "The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.” And nothing more than this is what these parties meant by their use of the word "lawful”.