Rose v. Hawley — 23 N.Y.S. 373

Majority

p. 373

ROSE v. HAWLEY et al.

(Supreme Court, General Term, Second Department.

May 8, 1893.)

Headnote

Stare Decisis.

Though the general term of the supreme court is not technically bound by its decision on a former appeal of a case, yet it will consider itself so bound where such decision is affirmed by the court of appeals after consideration of the same facts.

Appeal from circuit court, Westchester county.

Action by Levi P. Rose against David Hawley, the city of Yonkers, and others, to recover possession of certain premises. From a judgment for plaintiff entered on a verdict, also from an order granting an extra allowance, and from an order denying a motion for a new trial, defendants appeal.

Reversed.

For former report, see 15 N. Y. Supp. 969 .

Argued before BARNARD, P. J., and PRATT, J.

T. & S. H. Fitch, (William Allen Butler and Theodore Fitch, of counsel,) for appellants David Hawley and others.

Joseph F. Daly, for appellant city of Yonkers.

James M. Hunt, for respondent.

The facts in this case were before the court in a former action, and it was then held that they established no breach of the condition of the deed under which defendants make, title. See 45 Hun, 592 . That question, among others, was argued before the court of appeals, which in 118 H. Y. 502, 517, 23 H. E. Rep. 904, was also of opinion that the condition was not violated. As the views expressed by this court as to the legal effect of the facts have been expressly approved, we should scarcely feel at liberty to depart from our decision in 45 Hun, if we were in doubt of its correctness", but upon re-examination we are confirmed in our opinion, as there expressed. According to those views the plaintiff should have been nonsuited at the close of his case. The plaintiff argues that the previous judgment is not binding .upon us as an adjudication. However that may technically be, the opinion of our appellate court upon a fixed state of facts, rendered upon full argument, cannot be disregarded. The judgment must be reversed upon the facts, and a new trial ordered; costs to abide the event.