Merkel v. Lazard — 109 N.Y.S. 577

Majority

p. 577

MERKEL v. LAZARE et al.

(Supreme Court, Appellate Division, First Department.

March 20, 1908.)

Headnote

Appeail-Rehand and Proceedings Below—Law of the Case.

The court on appeal having held the facts proved raised a question for the jury, and directed a new trial, it was error on a new trial, practically the same facts being developed, to grant a nonsuit; the decision on appeal remaining the law of the case.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4661-4665.]

Appeal from Trial Term, New York County.

Action by Lizzie Merkel against Alexander Lazard and others. From a judgment dismissing the complaint, plaintiff appeals. Reversed, and new trial granted.

p. 578

Argued before PATTERSON, P. J., and INGRAHAM, LAUGHLIN, CLARKE, and HOUGHTON, JJ.

John E. Ruston, for appellant.

Louis Marshall, for respondents.

On a prior appeal by the defendants from a judgment entered upon a direction of verdict in favor of plaintiff this court held the facts proved raised a question for the jury and reversed the judgment and directed a new trial. 114 App. Div. 25 , 99 N. Y. Supp. 686 . On such new trial the learned trial court granted a nonsuit, and the plaintiff appeals.

No new facts were developed on the second trial justifying such a disposition of the case. The witnesses Mueclce and Frankenhauser were examined in greater detail on the last trial, but nothing new as to their course of dealing or as to the manner in which their checks were drawn was developed. Our former decision remains the law of the case, and should be followed by the trial court. That decision determined that the proofs made a question of fact clearly pointed for a jury to pass upon.

The nonsuit was improper, and the judgment must be reversed, and a new trial granted, with costs to appellant to abide the event.