The plaintiff is not entitled to the moneys deposited in the Citizens Trust Company of Schenectady unless it becomes entitled to a deed of the premises by *Page 569 payment of the amount directed in the judgment of the Appellate Division within the time limited by the judgment. Otherwise the defendant will be entitled to receive and hold these moneys. If the trust company has paid out these moneys in accordance with the terms of the judgment, then the defendant may look to the plaintiff for restitution. The judgments of the Appellate Division and the Supreme Court as modified thereby should be further modified to the extent that it be adjudged, that upon payment to the defendant of the amount directed within thirty days after notice of entry of judgment herein and delivery of deed to the plaintiff, the plaintiff shall be entitled to have and possess the moneys deposited by it in the Citizens Trust Company pursuant to the order of the court at Special Term made December 9th, 1922, and entered in Schenectady county clerk's office January 2d 1923 (which moneys amounted approximately on December 1st, 1924, to $63,525.24), together with all increases thereof, on account of any further deposits and interest, credits and accruals. If such payment be not made by the plaintiff within the said time, then the defendant shall be entitled to retain title to the premises, and shall have and possess the sums so deposited. Upon proof of delivery of the deed to it, the plaintiff may apply to the Supreme Court for an order directing the Citizens Trust Company of Schenectady, New York, to pay over to it any moneys then on deposit with it. Upon proof that the plaintiff has failed to make the payments to the defendant directed by the judgment within thirty days after notice of entry thereof, the defendant may apply to the Supreme Court for an order directing the Citizens Trust Company of Schenectady, New York, to pay over to him any moneys then on deposit with it, and directing the plaintiff to pay to the defendant any moneys withdrawn from such deposit account pursuant to the original judgment and not returned by it. The judgment of the Appellate *Page 570 Division and that of the Special Term should be modified in accordance herewith and as modified affirmed, without costs to either party.
CARDOZO, Ch. J., POUND, CRANE, ANDREWS and LEHMAN, JJ., concur; KELLOGG, J., not sitting.
Judgment accordingly.