Opinion
December, 1931.
Order of Appellate Term and order and judgment of the Municipal Court reversed upon the law, without costs, and motion for summary judgment denied. This is an action upon an undertaking given upon an appeal. It is provided by section 161 of the Civil Practice Act that no action may be maintained upon such an undertaking "until ten days have expired, since the service upon the attorney for the appellant and upon the sureties on such undertaking, of a written notice of the entry of a judgment or order affirming the judgment or order appealed from or dismissing the appeal." Compliance with this section is a condition precedent, and in the absence of these allegations the complaint does not state a cause of action. ( Porter v. Kingsbury, 71 N.Y. 588; First Bank of Notasulga v. Casualty Co., 176 App. Div. 109.) Lazansky, P.J., Young, Kapper, Hagarty and Tompkins, JJ., concur.