Patterson v. City of Binghamton — 39 N.Y.S. 408

Majority

p. 408

PATTERSON v. CITY OF BINGHAMTON.

(Supreme Court, Appellate Division, Third Department.

April 14, 1896.)

Headnote

Appeal—Former Decision of General Term—Effect.

A decision of the general term of the supreme court on appeal is, prima facie, the law of the case on a second trial of the action.

Appeal from circuit court, Broome county.

Action by Edward J. Patterson, as administrator of the estate of Jennie Patterson Townsend, deceased, against the city of Binghamton, to recover an award of damages for a right of way on the opening of a public street in the city of Binghamton, through the lands of plaintiff and of his intestate. The complaint was dismissed, and plaintiff appeals.

Affirmed.

Argued before LANDON, HERRICK, PUTNAM, and MERWIN, JJ.

Roger P. Clark, for appellant.

A. & A. W. Gumming, for respondent.

Upon the first trial of this case judgment was directed for the plaintiff, which, upon appeal, was reversed by the late general term of the Fourth department. Patterson v. City of Binghamton, 88 Hun, 272 , 34 N. Y. Supp. 416 . The general term held that, inasmuch as the defendant had, under the provisions of its charter, paid the amount of the award to the clerk

p. 409

of the county of Broome as the clerk of the supreme court, the plaintiff, as* the claimant of such award, must, in pursuance of the provisions of the city charter, apply to the court in that county for the same, and could not maintain an action against the city therefor. Upon the second trial the facts were substantially the same as upon the first. They were all found as agreed upon by the respective parties. Our attention is not called to any difference.

It seems to us that, in such a case, the decision of the general term was, prima facie, at least, the law of the case upon the second trial. The trial court so assumed, and directed judgment for-the defendant. We do not mean to say that there may not arise exceptions to this rule. If the court of appeals has, since the decision of the general term, announced a different rule in a case presenting like facts, or if, under the former system, an appeal to the court of appeals might be taken, where none can now be taken from the judgment of the appellate division, possibly the decision of the general term ought no more to preclude our examination of the case than if it had been pronounced in some other case. But, as it is, we think the proper administration of justice requires us to consider that decision as a completed step in the progress of the case towards its final determination, and we therefore direct that the judgment be affirmed, with costs. All concur.