Opinion
June 19, 1956
There are issues of fact raised by the pleadings and affidavits that can only be resolved upon trial, particularly the issue as to whether the seller made satisfactory arrangements for the satisfaction of the chattel mortgage as provided in paragraph 36 of the agreement. Defendant concedes, however, that plaintiffs are entitled to $4,000 out of the escrow fund. In fact, he has on two occasions tendered that amount, although not in strict conformity with section 174-a of the Civil Practice Act. Accordingly, the judgment is vacated and the order modified to the extent of granting partial summary judgment in favor of plaintiffs in the amount of $4,000, without interest and with costs to the defendant. Settle order on notice.
Concur — Peck, P.J., Breitel, Botein, Rabin and Cox, JJ.