MEMORANDUM. The order of the Appellate Division should be reversed, with costs, and the order of the Supreme Court, Albany County, reinstated.
As we noted in our memorandum accompanying our denial of a motion to amend the remittitur when the plaintiff's underlying cause of action against Penn Central was previously before this court, "the assessment of damages without correlative liability, pending retrial on the issue of liability, did not continue any obligation to pay once the issue of liability had been reopened". ( La Rocco v. Penn Cent. Transp. Co., 29 N.Y.2d 892.) Following our modification of the judgment against Penn Central, and before retrial, there was nothing upon which liability could be predicated. Thus, defendant's liability on the appeal bond terminated upon that modification.
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, RABIN and STEVENS concur in a memorandum.
Order reversed, etc.