Majority
p. 739PALUMBO v. ATLAS PORTLAND CEMENT CO. (Supreme Court, Appellate Term. January 21, 1910.) Argued before GIEGERICH, DAYTOÑ, and LEHMAN, JJ.
Headnote
Appeal and Error (§ 1195[1] )—Decision of Appellate Court—Law of Case.Where an order setting aside a verdict for plaintiff was affirmed on appeal, a judgment for plaintiff on the second trial on substantially the same evidence will be set aside.
[Ed. Note.—For other cases, see Appeal and Error, Cent Dig. §§ 4661, 4663; Dec. Dig. § 1195.[1] ]
Appeal from Municipal Court, Borough of Manhattan, Sixth District.
Action by Michael Palumbo against the Atlas Portland Cement Company. From a judgment'for plaintiff, and an order denying a new trial, defendant appeals.
Reversed.
De Forest Bros. (Ethelbert I. Low, of counsel), for appellant.
Isidore Klatzkie, for respondent.
Upon a former trial a verdict in favor of the plaintiff was set aside, and the order entered upon such ruling was affirmed without opinion (Appellate Term, May 27, 1909). The practical effect of such determination was that the truck in suit was owned and managed by an independent contractor and not by the defendant.
p. 740
The evidence adduced upon the first trial was substantially the same, as that given upon the trial which is the subject of this review, and in the light of the determination so made upon the former appeal, in which determination we fully concur, the judgment cannot be allowed to stand.
The judgment and order denying the motion for a new trial are reversed, and a new trial ordered, with costs.to the appellant to abide the event.