
    Nassau Trust Company, Respondent, v Rogus Construction Corp. No. 2 et al., Defendants, and Vincent G. Berger, Jr., et al., Appellants.
   In an action inter alia upon a corporate indebtedness, defendants Vincent G. Berger, Jr., Marie Berger, Walter J. Shruntek and Agnes Shruntek appeal from (1) an order of the Supreme Court, Nassau County, dated February 5, 1976, which (a) granted plaintiff’s motion for summary judgment and (b) denied their cross motion for summary judgment and (2) the judgment of the same court, entered thereon on February 27, 1976. Order modified by deleting the first, second and fourth decretal paragraphs thereof and substituting therefor a provision that plaintiff’s motion for summary judgment is denied. As so modified, order affirmed. Judgment reversed. Appellants are awarded one bill of $50 costs and disbursements to cover both appeals. In recognition of the rule that a party may not act as an escrow agent (see 20 NY Jur, Escrow, § 5), and in light of the fact that the compromise agreement entered into by the plaintiff and the codefendants has not been made a part of the record, we find that there exists an issue of fact which precludes the granting of summary judgment—namely, whether full payment has, in fact, already been made on the debt. Hopkins, Acting P. J., Martuscello, Latham, Cohalan and Hawkins, JJ., concur.  