La Rocco v. Penn Central Transportation Co.

278 N.E.2d 914, 29 N.Y.2d 892, 328 N.Y.S.2d 681, 1972 N.Y. LEXIS 1611

Opinion

Motion to amend the remittitur denied. The effect on the surety’s liability under the appeal bond by this court’s modification may be determined in an action on the bond, and not by repetitive motions addressed to amendment of the remittitur. It may be observed, however, that the holding in abeyance of the money verdict, that is, the assessment of damages without correlative liability, pending retrial on the issue of liability, did not continue any obligation to pay once the issue of liability had been reopened (see 5 Am. Jur. 2d, Appeal and Error, § 1033; with which compare the situation when both liability and damage issues have been reopened, Tripi v. United States Fid. & Guar. Co., 237 App. Div. 866, 867; Morse v. Morse Dry Dock & Repair Co., 250 App. Div. 863; Jackson v. Lawyer’s Sur. Co., 95 App. Div. 368, affd. 184 N. Y. 521). [See 29 N Y 2d 528, 666.]