Clute v. McCrea

12 N.Y. St. Rep. 648

Opinion

Pratt, J.

The note in suit becomes payable only when, the payee becomes finally successful in the suit therein described.

It appears by the sixth finding of fact that said action is still pending and undetermined.

The payee has not yet been finally successful, and the note is not yet due.

Defendant’s exception to the conclusion of law of the trial judge was well taken. . ■ . . .

The last clause of the note states that ‘ ‘ finally successful ” signifies “ when all appeals shall have been disposed of and the right to appeal has expired.”

As the case now stands for trial, no one can say that all appeals have been disposed of. The judgment next to be rendered may be the subject of an appeal.

Judgment reversed with costs to appellant to abide the event.

Barnard, P. J., and Dykman, J., concur.