Art Education Press, Inc. v. Smith

The defendant, an auctioneer, is sued in conversion for the proceeds of an auction sale conducted by him on *317behalf 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…