Opinion
May 17, 1973
Order, Supreme Court, New York County, entered on August 10, 1972, granting in part plaintiff's motion for summary judgment and severing the remaining issues for trial, unanimously modified, on the law, and summary judgment granted to plaintiff for the full amount of $31,730.47, with interest thereon at the rate of 4% from April 25, 1966, and otherwise affirmed. Appellant shall recover of respondents $60 costs and disbursements of this appeal. Prior to the submission of plaintiff's motion for summary judgment, the issue of the principal amount due in this action to recover a lump sum death benefit was admittedly settled by a clear and unambiguous stipulation between the parties freely arrived at. Said stipulation may not be set aside because of purported minor unilateral mathematical mistakes on defendants' part. Interest is to be computed on the amount stipulated to from April 25, 1966, the date on which the former administrator of the decedent's estate commenced her action to recover the retirement moneys on behalf of the estate. Plaintiff is entitled to interest at the rate of 4%, which was the prescribed rate of interest on July 1, 1940 (N.Y. Const., art. V, § 7; Matter of Deutsch v. Catherwood, 37 A.D.2d 399, 401, mod. on other grounds, 31 N.Y.2d 487; Matter of Ayman v. Teachers' Retirement Bd., 9 N.Y.2d 119). In passing we would note that we find it difficult to understand the attitude of the defendants in this case. Surely they are subject to the law which governs all of us. Settle order on notice.
Concur — Stevens, P.J., Nunez, Murphy, Tilzer and Capozzoli, JJ.