I part company with my brethren of the majority and Surrogate Midonick only on the issue of damages. The Surrogate correctly found that the executors had the power of sale (EPTL § 11-1.1, subd [b], par [5], cl [B]) and were not required to distribute in kind. The general rule is that executors, absent any authorization or direction in the testator’s will, are duty-bound to wind up the affairs of the estate except for the temporary purpose of converting the assets into money (cf. Willis v Sharp, 113 NY 586, 589; Matter of Begent, 37 AD2d 310, 311). In Matter of Sheinman (52 Mise 2d 220, 230) Surrogate Di Falco applied this principle to an estate holding art works, including paintings, stating: "An estate representative is not expected to open a retail store and dispose of the items singly to different buyers.”
I agree that the May, 1970 sale of the paintings was improperly made to Marlborough because of the conflict of interest of executors Reis and Stamos, but I seriously doubt that anyone would have questioned the sale and consignment of these paintings had they been sold to any other dealer in an arm’s length transaction. I agree with the Surrogate (p *508861) that "it cannot be gainsaid that the promotional efforts of Marlborough had a major effect in publicizing Rothko’s works and in creating a market for his product at higher prices, far higher than date of death values.” Nor can it be gainsaid that Marlborough deserves much credit for creating a market for Rothko paintings during the artist’s lifetime. And some of us are of the opinion that the extensive publicity given to this litigation which has become somewhat of a "cause célebre” also enhanced the value of Mr. Rothko’s works. The price of $1,800,000 for 100 paintings does not compare unfavorably with the value of the decedent’s paintings set by him in February, 1969 when he sold 87 of his paintings to Marlborough for $1,050,000 payable over 14 years under two contracts which gave Marlborough the exclusive right to sell Mr. Rothko’s works of art for a period of eight years. I note that although no relief was sought by petitioner-respondent with respect to these contracts, the Surrogate found that "from their conduct” the parties "intended to abandon and abrogate” them. Thus, the Surrogate sua sponte disposed of the 1969 inter vivos agreements which were a significant obstacle to the executors to sell the estate’s paintings to any dealer other than Marlborough. Surely the exclusive covenant affected adversely the executors’ bargaining power and the sale price of the property.
The Surrogate conceded that "[i]f in the area of trusts and estates the sole purpose of damages is to make the beneficiary whole, it would seem that when a fiduciary is authorized to sell and he sells to himself or to another with whom he is closely associated, the actual injury to the beneficiary is the difference, if any, between the price paid and the price which could have been obtained on the market.” (84 Misc 2d 830, 876.) Scott on Trusts is cited as authority for the imposition of "appreciation damages.” But the quoted passage (3 Scott, § 208.3) as I read it, holds to the contrary: "The beneficiaries are not entitled to the value of the property at the time of the decree if it was not the duty of the trustee to retain the property in trust and the breach of trust consisted merely in selling the property for too low a price. In such a case, although he is liable for the difference between its fair value and the price at which he sold it, he is not accountable for any subsequent rise in its value.” (See, also, Restatement Trusts 2d, §§ 205 and 208 which takes a consistent position.) The imposition of "appreciation damages,” ie., punitive damages *509based on present values, is contrary to New York authority which treats self-dealing as a "conversion.” (E.g., Zimmerman v Kinkle, 108 NY 282, 287; Fleck v Perla, 40 AD2d 1069,1070; Bonham v Coe, 249 App Div 428, 431, affd 276 NY 540.) Damages for conversion are computed on the basis of the value of the property at the time and place of conversion, plus interest. (See Jones v Morgan, 90 NY 4, 10; Jones v National Chautauqua County Bank, 272 App Div 521, 528; Filer v Creole Syndicate, 230 App Div 509, 512, revd on other grounds 256 NY 346; 1 Clark, New York Law of Damages, §§ 448, 458.) The only exception is when the property involved is securities or commodity futures regularly traded in a public market or exchange where prices fluctuate widely. In such cases damages are fixed from the time of conversion until a reasonable time thereafter in which to effect replacement. (E.g., Hartford Acc. & Ind. Co. v Walston & Co., 22 NY2d 672, 673; German v Snedeker, 257 App Div 596, affd 281 NY 832; Jones v National Chautauqua County Bank, supra; Filer v Creole Syndicate, supra.)
Although expressly disavowing petitioners’ entitlement to punitive damages, the Surrogate allowed recovery of so-called "appreciation damages.” The punitive nature of the recovery is clear when we consider that the court justified the appreciation damages "as a deterrent to future conduct of this nature by fiduciaries” (p 877) and that two of the executors were assessed substantially higher damages than the third in the identical transaction. The imposition of such measure of damages is not supported by the cases cited by the court which are materially distinguishable from this case.
Menzel v List (24 NY2d 91) cited by the majority as support for the appreciation measure of damages, is inapplicable. Menzel involved a stolen painting. The action was by a buyer against a seller for breach of warranty of title. It was, as the court stated, "an action on the contract.” Here the contract has been disavowed, rescinded. Here the executors concededly had good title and the power and duty to sell and therefore the damages are to be measured as of the time the contracts of sale and consignment were made.
I would modify and remand to determine the reasonable value of the paintings as of May, 1970 and the proper award of damages, if any. I agree that the factors mentioned by Mr. Justice Kupferman should be considered in arriving at such value.
*510Murphy, J., concurs with Lane, J.; Kupferman, J. P., concurs in part and dissents in part in an opinion; Capozzoli and Nunez, JJ., dissent in part in separate opinions.
Decree, Surrogate’s Court, New York County entered on January 16, 1976, modified, on the law, to the extent of deleting the last sentence of decretal paragraph 18, and otherwise affirmed, without costs and without disbursements.
Although this court is of the view that an appeal lies as of right to the Court of Appeals from the above disposition, in the event that court disagrees, on the basis that this court’s disposition is viewed as nonfinal, leave to appeal to the Court of Appeals is unanimously granted, sua sponte, to all parties desiring to do so from such parts of this court’s order as affects them on the following certified question: "Was the decree of the Surrogate’s Court, as modified by this court, properly made?”