
    Donald Byron, Appellant, v. Carl Allen, Respondent.
   Gibson, P. J.

Appeal (1) from an order of the County Court of Cortland County which granted defendant’s motion to dismiss the complaint, the motion being treated as an application for summary judgment; and (2) from the judgment entered thereon. In negligence actions stemming from an automobile accident, judgments were entered upon verdicts against the appellant in the case before us; appeals were taken and the usual undertaking on appeal was executed and filed by the automobile liability insurance carrier concerned, which has now instigated the present action in its insured’s name, against its insured’s driver, claiming authority so to do by reason of its alleged subrogation to the rights of the insured. The County Court, in its decision upon the motion, noted that the insurer’s attorneys had been afforded an opportunity to produce the contract of insurance but failed to do so. Appellant concedes, however, that the affidavit served in answer to the motion correctly states the policy provision as entitling the insurer to subrogation “in the event any payment raider the said policy should be forthcoming”. On this appeal, it is raged on behalf of the carrier merely that the undertaking on appeal was “ tantamount ” to payment. No discussion seems necessary to support the thesis that the undertaking is not a “payment”, and was given, in fact, to avoid payment. The complaint fails to allege any “payment”. It is clear that the judgment creditors have received no “payment”, the purpose of the undertaking and appeal being, on the contrary, to resist payment; that appellant insured has not been released from liability under the judgments; and that, as also found by the County Court, the action was brought in appellant’s name without his authority. Order and judgment affirmed, without costs. Herlihy, Reynolds and Staley, Jr., JJ., concur; Taylor, J., not voting.  