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Fehr v. Rosenbaum

123 N.Y.S. 917 Court N.Y. App. Term Decision date 1910-06-24 English

Delivered by BIJUR, J.

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p. 917
FEHR v. ROSENBAUM.
(Supreme Court, Appellate Term.
June 24, 1910.)

Headnote

Appeal and Error (§ 1099[1] )—Reversal—Subsequent Appeal.
Where a judgment dismissing the complaint was reversed, and no new facts were proved on a second trial warranting a different conclusion, a second judgment for defendant would be reversed on a subsequent appeal.
[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 4376; Dec. Dig. § 1099.*]
Appeal from Municipal Court, Borough of Manhattan, Seventh District.
Action by Jules Eehr against Louis Rosenbaum. Erom a Municipal Court judgment for defendant, plaintiff appeals.
Reversed, and new trial ordered.
Argued before SEABURY, GUY, and BIJUR, JJ.
McClure & McClure, for appellant.
Samuel Sturtz, for respondent.

This case has been once tried, and "the complaint dismissed, by a judge of the Municipal Court sitting without a jury. The judgment was reversed by the Appellate Term; the facts and reasons, sufficiently appearing in the per curiam opinion. 111 N. Y. Supp. 653 .

The reversal was, substantially, on the evidence below. The respondent points to no new facts, adduced on the second trial, as warranting any other conclusion than that reached by this court on appeal from the first judgment.

Consequently, on the authority of that decision, the judgment below is reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.