
    Carmine La Barca et al., Respondents, v. Mechanical Man Car Wash Mfg. Company, Inc., Appellant.
   In an action to recover a $15,000 deposit, the defendant appeals from a judgment of the Supreme Court, Nassau County, dated October 28, 1970 which awarded plaintiffs $7,500, plus interest from March 2, 1969, costs and disbursements. Judgment modified, on the law and the facts, and in the exercise of discretion, by striking the provisions for interest, costs and disbursements, and substituting therefor a provision awarding plaintiffs interest from May 22, 1970. Also, there appear to be two decretal paragraphs with the same provisions, and the first is struck out. As so modified, judgment affirmed, without costs. Plaintiffs deposited $15,000 with defendant pursuant to a written memorandum executed March 2, 1969. In this action they claimed that the memorandum did not constitute a contract and that they were entitled to a return of the deposit. Defendant counterclaimed for lost profits. The jury determined that the memorandum was a contract and that defendant was entitled to retain $7,500 of the deposit. Plaintiffs were not entitled to a return of any money until the verdict on May 22, 1970, as defendant held it pursuant to a contract. Accordingly, plaintiffs should not have been awarded costs and disbursements as they did not prevail on the trial. We are of the opinion that the verdict of $7,500 was properly within the discretion of the jury. Rabin, P. J., Hopkins, Munder, Gulotta and Brennan, JJ., concur.  