Regierer v. United States Fidelity & Guaranty Co.

136 N.Y.S. 42

Opinion

PER CURIAM.

Plaintiff is the assignee of a judgment obtained by her assignor against one Bayles, which judgment was obtained by default. Bayles appealed from the judgment so taken, and gave an undertaking, executed by the defendant, to the effect that if the judgment was affirmed, or the appeal dismissed, the defendant would pay the same. The appeal from the judgment was dismissed. Subsequently Bayles moved to open his default, which motion was denied in the lower court. The order denying the motion to open the default was thereafter reversed by this court, and the judgment vacated, and a new trial ordered; and it is said, and not disputed, that upon the new trial the plaintiff discontinued the action.

The order, of this court vacating the judgment was entered as of March 21, 1912, and the present action was begun by service of the summons on March 28, 1912, so that at the time this action was commenced there was no judgment in existence in favor of plaintiff’s assignor against Bayles. The vacatur of the judgment relieved the defendant from any liability under the undertaking, and this action cannot be maintained. Wehle v. Spellman, 75 N. Y. 585, 587; Milliken v. Fidelity & Deposit Co., 129 App. Div. 206, 113 N. Y. Supp. 809.

Judgment reversed, with costs, and complaint dismissed, with cost's.