Walsh v. Tiedemann

Page, J:

After the judgment had been entered in the action brought by the plaintiff against her former husband, and the appeal therefrom had been taken to this court (Tiedemann v. Tiedemann, 172 App. Div. 819), which, we will denominate action No. 1, the plaintiff commenced another action against her former husband to recover installments of alimony which had thereafter accrued, which we will call action No. 2. Before action No. 2 came to trial, an undertaking was executed by Theodore Tiedemann (the father of the defendant therein) reciting the entry of the interlocutory judgment in action No. 1, and that an appeal had been taken therefrom and was pending, and that the issues in action No. 2 with respect to the defendant’s liability to pay alimony are the same as those involved in action No. 1, and that Theodore Tiedemann has promised and agreed, if the plaintiff would adjourn the trial of action No, 2 until the final determination of the appeal in action No. 1, he would give an undertaking that if the interlocutory or final judgment therein should be finally affirmed as to the sum of money therein directed to be paid as accrued alimony and counsel fee, or any part thereof, and judgment obtained in action No. 2 in favor of the plaintiff and against the defendant, that he would pay the sum recovered or directed to be paid by any judgment recovered in action No. 2, not exceeding $4,000. An undertaking to that effect follows the recitals. The trial of action No. 2 was adjourned until after the affirmance of action No. 1 by the Court of Appeals (225 N. Y. 709). Action No. 2 was restored to the calendar and tried, resulting in a judgment for the plaintiff in the sum of $5,121.85, on the 9th day of April, 1919. This action was commenced on the 10th day of April, 1919, against Theodore Tiedemann upon the undertaking. On April 29, 1919, the' defendant in action No. 2 appealed to this court from the judgment in action No. 2 and obtained a stay. The defendant herein thereupon moved for and obtained an order staying all proceedings in this action pending the determination of the appeal in action No. 2 by this court, and extending the defendant’s time to plead or make such motion with reference to the complaint until ten days after notice of the entry of the order of the Appellate Division, and in case an appeal should be taken to the Court of Appeals, then until ten days after the notice of entry of judgment on the remittitur.

This order is contrary to the letter and intent of the undertaking given by the defendant. It was conceded that the issues in actions Nos. 1 and 2 were the same and the trial of action No. 2 was to be adjourned until the determination of the appeal in action No. 1, and the defendant undertook to pay any judgment that might be rendered in action No. 2 to the extent of $4,000. It was not contemplated that the payment of that judgment was to be delayed by unnecessary and frivolous appeals to this court and the Court of Appeals. The order should not have been granted. We are not called upon to determine the effect upon this action of the granting of the writ of error and the supersedeas to the United States Supreme Court (See Walsh v. National Surety Co., 188 App. Div. 631, decided herewith), because the defendant asked only for the specific relief which was granted and not for alternative or general relief.

The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Clarke, P. J., Dowling, Smith and Philbin, JJ., concurred.

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