
    B. Franklin Moss et al., Copartners Trading under the Name of Henry Moss & Co., Respondents, v. Congoleum-Nairn, Inc., Appellant.
   Order denying defendant-appellant’s motion to compel plaintiffs to enter partial summary judgment and for cancellation of that judgment upon entry, unanimously affirmed, with $10 costs and disbursements. Judgment in favor of plaintiffs and against defendant for the balance unpaid upon the amount awarded plaintiffs as partial summary judgment unanimously affirmed, with $10 costs and disbursements. The defendant made tender to plaintiffs and upon refusal deposited the amount thereof in court, pursuant to sections 171-173 of the Civil Practice Act. Plaintiffs were awarded partial summary judgment for that same amount by an order, consented to by defendant, which directed the city treasurer to pay plaintiffs the amount so on deposit with him. Had defendant paid to plaintiff the amount of the award in summary judgment, defendant would then have had to apply for an order directing the city treasurer to repay to it the money so deposited. (Fleder v. ItToin, 294 H. T. 77. See Fourteenth Annual Report of H. T. Judicial Council, 1948, pp. 211-220.) Present — Carswell, Acting P. J., Johnston, Adel, Sneed and Wenzel, JJ. [See 274 App. Div. 816.]  