Woollard v. Schaffer Stores Co.

Appeal by the plaintiff from an order of the Supreme Court, entered in the Albany county clerk’s office on May 19, 1937.

Respondent heretofore appealed from a judgment of about $6,400 which had been recovered against it, and requested this appellant to waive the filing of an undertaking to stay execution, and offered in lieu thereof to leave with appellant a certified check for the sum mentioned, payable to appellant. The appellant cashed the check and kept the proceeds in a safe deposit box. The Court of Appeals reduced the judgment. The amount thereof was paid by the respondent. The Special Term decided that the cashing of the check was a conversion of the fund and directed the payment of the deposit, with interest. The order should be modified by striking therefrom the provision as to interest.

Order modified by striking therefrom the following words: “with interest thereon from the 24th day of October, 1935, to March 8, 1937 in the amount of Five Hundred Twenty-eight Dollars ($528.00),” and as so modified affirmed, with ten dollars costs and disbursements to the appellant.

Hill, P. J., Rhodes and Heffernan, JJ., concur; McNamee and Crapser, JJ., dissent and vote to affirm, with a memorandum.