Clemmons v. Gordon

CONLAN, J. Judgment was entered in the original action on February 20, 1901. On March 16th following an appeal was taken to the general term of this court. On April 25th this action was commenced. The record therefore discloses that at the time of the commencement of this action the defendants in the former action) had appealed from the judgment, and that appeal was still undetermined. In the case of Bank v. Blye, 102 N. Y. 305, 7 N. E. 49, where the question was similar to the one presented on this appeal, the court says: “The condition of the undertaking did not become fixed and determined until the final determination of the action, and this could not be until the appeal had been disposed of. The defendant only became bound to deliver the chattels recovered when the plaintiff had a right to enforce a judgment in its favor. This right did not exist so long as the appeal was pending.” It follows that this action was prematurely brought. The court at special term had no power to grant an amendment creating a cause of action that did not exist at the time of the commencement of the action. Order appealed from reversed, with costs. Order reversed, with costs. All concur.