Cooke v. Manhattan Galleries, Inc. 48 A.D.2d 793

Order entered December 10, 1974, in the Supreme Court, New York County, unanimously modified, on the law, to reverse and grant plaintiff-appellant’s motion for partial summary judgment as to her second cause of action in the amount of $17,360 with interest from March 20, 1974. As so modified the order is otherwise affirmed, with $60 costs and disbursements to appellant. There is no dispute that defendants sold certain items of plaintiff’s personal property at auction on March 20, 1974, for a total price of $21,700. Defendants were entitled to a commission of $4,430. Defendants sent a check to plaintiff for $17,360, which check was returned by plaintiff because defendants did not consent to such payment "without prejudice” to other claims plaintiff might assert against them. It is noted that the check itself contained no restrictive provision, merely a notation "consignment #472”, and could have been cashed without barring further claims. Interest is allowed because defendant has had the use of the funds, and the running of interest could have been prevented by payment of the amount into the court. Settle order on notice. Concur—Stevens, P. J., Kupferman, Murphy, Tilzer and Capozzoli, JJ.