Majority
p. 964Chauncey S. Horton and Others, Plaintiffs, v. Thomas McNally Company, Defendant. In the Matter of the Application of The Harriman National Bank of the City of New York, Appellant, for an Order Restraining the City of New York from Paying, and Benjamin B. Odell, Jr., as Receiver of Thomas McNally Company, Respondent, from Receiving, any Part of the Retained Percentage under Contract No. 2, etc.
The parties hereto having stipulated in open court that this case may be disposed of by a court of four, the decision is as follows: Order modified in accordance with opinion per curiam in Horton v. McNally Co. (ante, p. 248), decided herewith, and as so modified affirmed, without costs. Jenks, P. J., Carr and Putnam, JJ., concurred; Rich, J., voted to affirm on the opinion of Mr. Justice Tompkins at Special Term ( 89 Misc. Rep. 165 ).