Fritz, Lynch and Trautwein. The opinion of the court was delivered by Lynch, J.A.D.
[124 NJSuper Page 512] In this condemnation case the complaint was filed before the enactment of the Eminent Domain Act of 1971 (N.J.S.A. 20:3-1 et seq.) which became effective December 21, 1971. The issue before us is whether, under that statute, interest on the ultimate award of $170,000 runs, as defendant contends, from the time of filing the complaint on July 27, 1970 to the time plaintiff deposited $140,000 with the clerk of the court on April 14, 1972 (pursuant to N.J.S.A. 20:3-18).*fn* The trial court held that defendant
was entitled to interest only on $30,000, representing the difference between the deposit and the ultimate award, from the date of the deposit until the date of closing.
Defendant relies on N.J.S.A. 20:3-31, which reads:
Interest as set by the court upon the amount of compensation determined to be payable hereunder shall be paid by the condemnor from the date of the commencement of the action until the date of payment of the compensation; provided, however, that there shall be excluded from the amount upon which interest shall be calculated, all moneys deposited pursuant to Article V hereof;*fn1 and provided, further, that interest payable hereunder shall be subject to abatement for rents and profits derived from the property by the condemnee during the period for which interest is payable hereunder, and/or for the fair rental value of such property or any portion thereof occupied by the condemnee during such period.
The argument of defendant settles upon a literal reading of the first clause of the foregoing section of the new statute:
Interest as set by the court upon the amount of compensation determined to be payable hereunder shall be paid by the condemnor from the date of the commencement of the action until the date of payment of the compensation; * * *. [Emphasis added]
We disagree with such a construction of the statute, as the clause upon which defendant relies is taken out of context. In fact, it ignores the very next clause in that section, which expressly repudiates defendant's construction. That clause reads, "provided, however, that there shall be excluded from the amount upon which interest shall be calculated, all moneys deposited pursuant to Article V hereof ; * * *" i.e., N.J.S.A. 20:3-18. (Emphasis added). The amount upon which defendant calculates interest is $170,000 (the amount of the ultimate award) without excluding the
$140,000 deposit made by plaintiff pursuant to section 18. True, defendant calculates interest on $140,000 from the date of the filing of the complaint only to the date of the deposit and upon the remaining $30,000 thereafter. But the statute mandates that the $140,000 must be excluded entirely as a base upon which interest is to be calculated.
In a context, as here, where the condemnor has made such a deposit, and the ultimate award is greater, interest is awarded only on the excess. N.J.S.A. 20:3-23 reads, so far as pertinent:
Upon application of any condemnee, * * * the court may direct that the estimated compensation on deposit * * * be paid to the person or persons entitled thereto, on account of the compensation to which they may be entitled in the action; * * * and provided further, that if the award or judgment fixing such compensation be more than the amount deposited, condemnor shall pay the excess to the condemnee entitled ...