
    Barney Gelder, Respondent, v. National Surety Company, Appellant.
    (Supreme Court, Appellate Term, First Department,
    October, 1912.)
    Undertaking — on appeal from judgment — motions and orders — pleading.
    A provision in an undertaking, given by defendant on appeal from a judgment against him, that if the appeal were dismissed he would pay the amount directed to be paid by the judgment assumes the existence of the judgment, but the reversal of an order denying a motion to set aside the verdict and for a new trial necessarily extinguishes said judgment; and in an action upon the undertaking an order granting plaintiff’s motion for judgment on the pleadings will be reversed and the motion denied.
    Appeal by defendant from an order of the City Court of the city of Rew York granting plaintiff’s motion for judgment on the pleadings, and from the judgment entered thereon.
    Amos H. Stephens (Benjamin C. Loder, of counsel), for appellant.
    Herbert S. Murphy (Jules H. Baer, of counsel), for respondent.
   Seabury, J.

Judgment and order reversed, with ten dollars costs and disbursements and motion denied, with ten dollars costs.

Gut and Bijub, JJ., concur.

Order reversed and motion denied.  