McDermott v. Concord Casualty & Surety Co.

The mere taking of an appeal does not suspend the liability of an insurer under section 17 of the Vehicle and Traffic Law, at least unless an undertaking is given staying execution of the judgment obtained. (Pape v. Red Cab Mutual Casualty Co., 128 Misc. 456.) The present undertaking is insufficient to stay execution as it does not provide for the payment of the judgment obtained but merely a part thereof. (See Civ. Prac. Act, §§ 594, 614.) Therefore, plaintiff’s action was not premature and it was error to dismiss the complaint. The case of Schroeder v. Columbia Casualty Co. (126 Mise. 205), relied on below, involved liability of an insurer under section 109 of the Insurance Law and is not controlling here.

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

All concur; present, Levy, Callahan and Untermyer, JJ.