Evans v. United States Life Ins.

Headnote

Appeal—Review—Decision on Former Appeal.

Where, on a former appeal, all the measures of relief now asked for were fully.considered and refused, that disposition must be regarded as final.

Appeal from special term, Kings county.

William Evans brought this action in 1874 against the United States Life-Insurance Company of New York city, to recover upon a policy of insurance-issued on the life of one Starr. Plaintiff had judgment, which was reversed-in the court of appeals, and in February, 1876, in pursuance of the stipulation on appeal, judgment absolute was entered in favor of defendant, and* against plaintiff for costs. In February, 1878, William W. Hebberd, claim- - ing under assignment from Evans, executed subsequently to the final entry - of judgment in 1876, brought an action on the same policy, which action was-stayed for non-payment of the costs adj udged against plaintiff, Evans, in 1876-In December, 1886, Hebberd obtained an order opening the Evans judgment,, substituting him as plaintiff, and granting him leave to serve an amended complaint. This order was reversed at general term, in 1887, where it was-held that “the stipulation (on Evans’ appeal) covered the whole ease. The policy was destroyed by it.” After this decision, Hebberd obtained an order from a special term justice requiring defendant to show cause why Hebberd should not be substituted as plaintiff in place of Evans, and allowed to file an amended complaint. The motion was denied, chiefly on the ground that the-decision of the general term in 1887 was a bar. From the order denying this, motion Hebberd appeals.