Opinion
December 1, 1958
In an action to recover for work, labor and services performed and materials furnished, the prosecution of which has been stayed by this court pending arbitration ( Matter of Delma Eng. Corp. [ K L Constr. Co.], 6 A.D.2d 710), the appeal is from an order denying appellants' motion for partial summary judgment based on admissions of the respondent. Order affirmed, without costs, and without prejudice to (1) an application to amend this court's decision on the prior appeal ( Matter of Delma Eng. Corp. [ K L Constr. Co.], supra), so as to limit the stay to the net amount actually in controversy between the parties, namely $54,026.01, and (2) a new application, in the event this court so amends its decision, for partial summary judgment as to the $12,411.53 which in its answer respondent has tendered to the appellants and which has been admitted to be the balance due them in excess of all the offsets claimed by respondent. Wenzel, Acting P.J., Beldock, Murphy, Hallinan and Kleinfeld, JJ., concur.