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Rosenberg v. Schoenwald

129 N.Y.S. 155 Court N.Y. App. Div. Decision date 1911-05-04 English

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p. 155
ROSENBERG v. SCHOENWALD.
(Supreme Court, Appellate Term.
May 4, 1911.)

Headnote

Appeal and Error (§ 1207[1] )—Reversal—Compliance with Opinion.
Where, - in a former appeal, a judgment was reversed, and the opinion made it clear that, upon a certain settlement between plaintiff and the makers of notes, defendant was discharged from liability thereon, the court below should have dismissed the complaint on defendant’s motion.
[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4696-4699; Dec. Dig. § 1207.[1] ]
Appeal from Municipal Court, Borough of Manhattan, Second District.
Action by Meyer Rosenberg against Barnett Schoenwald. From a judgment for plaintiff, defendant appeals.
Reversed, and complaint dismissed.
Argued before SEABURY, LEHMAN, and GERARD, JJ.
Bernard Fliashnick (Jacob Bernstein, of counsel), for appellant.
Jacob Cebulsky, for respondent.

This case was before this court at the December term in 1910, upon an appeal from a judgment which was entered in favor of the plaintiff. 126 N. Y. Stipp. 615. The opinion of the court reversing the judgment was written by Mr. Justice Brady. That opinion made it clear that, upon the settlement which took place between, the plaintiff and the makers of the notes, the defendant was discharged from liability. Upon the proof presented, and upon having its attention called to the opinion referred to above, the court below should have granted the motion to dismiss the complaint.

Judgment reversed, and complaint dismissed, with costs to the appellant in this court and in the court below.