Fuller Buggy Co. v. Cudney

Spencer, J. The plaintiff obtained judgment by default. On motion, the default was opened as to the defendant Cudney, the order providing as follows: “ Said judgment stand for whatever judgment the plaintiff may finally obtain herein against said defendant.” On' the trial, the defendant prevailed, and judgment dismissing the complaint has been entered; plaintiff has appealed and the appeal is still pending. This is a motion by the defendant Cudney to cancel the record of the judgment. The plaintiff contends that the judgment should stand until the termination of the appeal or any other which may be had in the action. . Although we have courts many and_ appeals many, nevertheless there is an end to all things including litigation, and this case cannot be said to be finally determined until all the appeals have been decided or the right thereto lost. This was the holding in this district in a case where security given for costs was attempted to be withdrawn before the time for appeal had expired. First Nat. Bank v. Hall, 19 Misc. Rep. 278. . The practice of requiring judgments to stand as security upon opening defaults is common (3 Nichols Pr. 2877), and is equivalent to requiring the defendant- to give undertaking to pay any judgment which the plaintiff may finally or ultimately recover against him. Dudley v. Brinck, 8 Misc. Rep. 76; Glickman v. Loew, 29 App. Div. 479. The undertaking, when so given, extends to a judgment on appeal. Caponigni v. Cooper, 70 App. Div. 124. The same ruling should apply to a judgment allowed to stand in lieu of an undertaking. It follows, therefore, that the motion to cancel judgment must be denied. Motion denied, with costs.