Imber v. Consolidated Indemnity & Insurance

147 Misc. 758, 264 N.Y.S. 554, 1933 N.Y. Misc. LEXIS 1539

• Court: Appellate Terms of the Supreme Court of New York
• Decided: May 25, 1933
• Status: Published

Opinion

Per Curiam.

The obligation of the defendant under section 17 of the Vehicle and Traffic Law was for the payment of any judgment recovered against the principal insured. Such a judgment had been obtained herein and execution thereon returned unsatisfied. The taking of an appeal without giving an undertaking to stay execution would not render plaintiff’s action against the insurer premature. (Pape v. Red Cab Mutual Casualty Co., 128 Misc. 456.) The undertaking furnished on appeal herein was not effectual to stay execution nor should it hinder the progress of this suit as it did not comply with section 594 of the Civil Practice Act. Such section provides that execution shall be stayed on giving security for the payment of “ the sum recovered or directed to be paid by the judgment.” The present undertaking secures payment of only a part of the sum recovered. Plaintiff was, therefore, entitled to summary judgment.

Order reversed, with ten dollars costs and disbursements, and motion granted.

All concur; present, Lydon, Callahan and Frankenthaler, JJ.