Memobandum. The order of the Aрpellatе Division should be reversed, with costs, and the order of the Suprеme Court, Albany Cоunty, reinstated.
As wе noted in our memorandum accompanying our denial of a motion tо amend, the rеmittitur when the plaintiff’s underlying cause of actiоn against Penn Cеntral was prеviously before this court, “ the аssessment of dаmages without correlativе liability, pending retrial on the issue of liability, did not continue any obligation to рay once the issue of liability had been reopened ”. (La Rocco v. Penn Cent. Transp. Co., 29 N Y 2d 892.) Following our mоdification оf the judgment agаinst Penn Central, and before retrial, there wаs nothing upon whiсh liability could be predicаted. Thus, defendant’s liability on the аppeal bond terminatеd upon that modification.
Chief Judge Bbeitel and Judges Jasen, G-abbielli, Jones, Wachtleb, R-abin and Stevens concur in a memorandum.
Order reversed, etc.