Opinion
March 18, 1963
In a representative action by five subcontractors in a real property improvement project, to impress and enforce a trust or trusts under the former sections 36, 36-a, 36-b and article 3-A of the Lien Law, all of which are applicable to the trust or trusts in question (see L. 1959, ch. 696, § 16), plaintiffs appeal: (1) from an order of the Supreme Court, Nassau County, dated March 14, 1962 and entered in Westchester County on March 23, 1962, which (a) granted the motion of the defendant Savings Bank insofar as it sought summary judgment dismissing the complaint as to it; leave to deposit in court the balance in its hands to the credit of the action; and its discharge from further liability upon the making of such deposit; (b) denied plaintiffs' cross motion for summary judgment; and (c) severed the action insofar as it is against the remaining defendants; and (2) from a judgment of the Supreme Court, Westchester County, entered March 23, 1962, dismissing the complaint as against the said defendant Savings Bank (see 33 Misc.2d 606; see, also, 22 Misc.2d 80). Order and judgment affirmed, with $10 costs and disbursements. Our affirmance, however, is upon the ground that the payments which the defendant bank made out of the trust funds in its possession for work rendered and for materials supplied in order to complete the improvements on the properties in question did not constitute diversions of such funds from their intended purpose. Beldock, P.J., Ughetta, Christ, Rabin and Hopkins, JJ., concur.