Hyperlawhypertext legal database Powers v. Village of Mechanicville 152 N.Y.S. 1077

← Cases

Powers v. Village of Mechanicville

152 N.Y.S. 1077 Court N.Y. App. Div. Decision date 1915-05-05 Docket No. 109-95 English

Delivered by WOODWARD, J.

Contents

Majority

p. 1077
POWERS v. VILLAGE OF MECHANICVILLE.
(No. 109-95.)
(Supreme Court, Appellate Division, Third Department.
May 5, 1915.)

Headnote

Appeal and Errob <§=>1097—Law op Case—Subsequent Appeal.
The decision on a former appeal is the law of the case on a subsequent appeal, where the material facts proven on the two trials are the same.
[Ed. Note.—Por other cases, see Appeal and Error, Cent. Dig. §§ 4358-4368, 4427;. Dec. Dig. <§=1097.]
Appeal from Trial Term, Saratoga County.
Action by Anna Powers against the Village of Mechanicville. From judgment for plaintiff, and denial of new trial, defendant appeals. Affirmed.
Argued before SMITH, P. J., and KELLOGG, LYON, HOWARD, and WOODWARD, JJ.
J. Lewiston Flanagan, Village Atty., of Mechanicville (Robert W. Fisher, of Mechanicville, of counsel), for appellant.
Rockwood & McKelvey, of Saratoga Springs (L. B. McKelvey, of Saratoga Springs, of counsel), for respondent.

The effort to distinguish the facts in this case from those presented upon the former appeal ( 163 App. Div. 138 , 148 N. Y. Supp. 452 ), while most ingenious, is not successful. The municipality is conducting a water plant; it furnishes water to private consumers through its mains by means of subsidiary pipes, and while it is shown that these subsidiary pipes are put in at the expense of the private consumer, the municipality yet maintains control of such subsidiary pipes. These pipes are placed partly in the street and partly upon the premises of the consumer, but in this instance the shutoff box was located upon one of the principal streets and was clearly maintained for the purposes of the municipality as a purveyor of water, and it comes squarely within the principles, laid down on the former appeal. The law of the case being settled that the facts justified a submission to the jury, and the facts warranting the verdict, we find no reason for a reversal of the judgment in favor of the plaintiff.

The judgment and order appealed from should be affirmed, with costs. All concur.

Cases cited