(dissenting). I would affirm the order granting summary judgment to plaintiff, and the judgment entered thereon.
When the condemnation proceeding was settled by the parties, the stipulation of settlement provided in pertinent part that the city would pay "lawful interest” on the award. This stipulation was incorporated into the final decree, entered April 7, 1981. At that time the statutory rate of interest was 6%. When the city made final payment, pursuant to the decree, it included interest at the statutory rate. Plaintiff accepted this payment only under protest and commenced this action for the additional interest.
Special Term properly held, in reliance on Matter of South Bronx Neighborhood Dev. Plan (110 Misc 2d 571, affd sub nom. Matter of City of New York [Brookfield Refrig. Corp.], 89 AD2d 948, affd 58 NY2d 532), that the "lawful interest” upon a condemnation award for the years 1978 through 1981 was 9%, rather than the statutory rate of 6%. The issue had been *250fully litigated in that case. It covered the very years here involved, as Special Term noted. Thus the city was estopped from relitigating the issue (Schwartz v Public Administrator of County of Bronx, 24 NY2d 65; Matter of Jones v Berman, 37 NY2d 42).
The majority’s reliance upon Adventurers Whitestone Corp. v City of New York (65 NY2d 83, appeal dismissed — US —, 88 L Ed 2d 276) is misplaced. In that case, the Court of Appeals held that plaintiff was barred by res judicata from litigating the issue in an independent action, because it "neither raised the question of the rate of interest constitutionally required in the condemnation proceeding nor preserved by stipulation its right to litigate the issue in another forum.” (65 NY2d, at p 91.)
On the contrary, in our case the issue was raised and preserved in the stipulation of settlement "attached” to the final decree and judgment. The use of the term "lawful interest” manifested a clear intent to incorporate the interest found to be lawful in the pending litigation or to be open to independent litigation. An independent action may be brought to enforce a stipulation of settlement (Yonkers Fur Dressing Co. v Royal Ins. Co., 247 NY 435; Teitelbaum Holdings v Gold, 48 NY2d 51). The use of the term "lawful interest” could not mean the statutory rate of 6%, else the term "statutory interest” or "interest” would have been used. "Lawful interest” could only mean the rate found to be "lawful” in the then-pending litigation, resolved in Brookfield (supra). The use of the term preserved the issue, thus meeting the preservation issue raised in Adventurers (supra).
Plaintiff is entitled to judgment.