In an action to recover the face amount of a check delivered to plaintiff, an attorney, as escrowee, the defendants, by permission of this court, appeal from so much of an order of the Appellate Term of the Supreme Court, entered June 29, 1961: (1) as reversed an order of the Municipal Court of the City of Hew York, entered May 11, 1960, insofar as it denied without prejudice plaintiff’s motion for summary judgment; (2) as granted such motion for summary judgment; and (3) as directed the entry of judgment accordingly in favor of the plaintiff. Order of the Appellate Term, insofar as appealed from, reversed, with costs; order of the Municipal Court, insofar as it denied plaintiff’s motion for summary judgment without prejudice, reversed; and said motion denied unconditionally. In our opinion, the record presents issues which should be resolved after trial by the trier of the facts. Ughetta, Acting P. J., Kleinfeld, Christ, Brennan and Rabin, JJ., concur.