Art Education Press, Inc. v. Smith

O’Malley, J. The defendant, an auctioneer, is sued in conversion for the proceeds of an auction sale conducted by him on [317] behalf of the plaintiff. The defendant, in the circumstances, has a hen on the proceeds in his hands for commissions and expenses. (Hone v. Henriquez, 13 Wend. 240; Muller v. Pondir, 55 N. Y. 325, 340, 341; Underhill v. Jordan, 72 App. Div. 71; 7 C. J. S. § 12, Auctions and Auctioneers; 5 Am. Juris., Auctions, § 53.) Conceding the fiduciary relationship claimed by the plaintiffs between them and the defendant, it clearly appears that there has been no adjustment of the account and that there exists an honest dispute between the parties as to the amount due. The defendant alleges a tender of the amount he concedes to be due. An action in conversion, therefore, will not he. (Gunning v. Quinn, 81 Hun, 522; affd., on opinion below, 153 N. Y. 659; Laverty v. Snethen, 68 id. 522, 527.) We affirm the order on this ground, rather than that upon which the learned justice at Special Term predicated the vacatur. It follows that the order appealed from should be affirmed, with twenty dollars costs and disbursements to the respondent. Martin, P. J., Townee y, Dore and Cohn, JJ., concur. Order unanimously affirmed, with twenty dollars costs and disbursements.