City of Yonkers v. Maryland Casualty Co. ( 1937 )

— Cross-appeals from an order in an action to recover on an undertaking on appeal executed by defendant. Plaintiff appeals from so much of order as denies its motion to strike out the fifth separate defense contained in the amended answer. The defendant appeals from so much as grants the plaintiff’s motion to strike out the first, second, third and fourth separate defenses thereof. Order modified by striking out the fifth separate defense, and as so modified affirmed, with ten dollars costs and disbursements to the plaintiff. The separate defenses alleged, as set-offs, a judgment recovered by the plaintiff in the action of the City of Yonkers against Kelly. This judgment did not become effective until after the judgment had been obtained in the action of Kelly against the City of Yonkers. The liability of the defendant herein became fixed when the appeal from the judgment in the action of the City of Yonkers against Kelly was dismissed. This court held, on a prior appeal, that the assignments of the judgment in the action of Kelly against the City of Yonkers were made prior to the time the judgment sued on here became final and effective and, therefore, the plaintiff herein had no equitable right of offset and was liable for the full amount thereof. (Kelly v. City of Yonkers, 242 App. Div. 798.) Lazansky, P. J., Carswell, Johnston’ Adel and Close, JJ., concur.