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.
*857Order 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.