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Stokes v. Hyde

48 N.Y.S. 717 Court N.Y. App. Div. Decision date 1897-12-31 English

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p. 717
STOKES v. HYDE.
(Supreme Court, Appellate Division, First' Department.
December 31, 1897.)

Headnote

Sbcomd Appeal—Law of the Case.
Where a judgment is reversed by the appellate division of the Second department, and on a new trial the facts are substantially the same as on the first trial, the decision of such division is the law of the case on appeal to the appellate division, First department.
Appeal from special term, New York county.
Action by William E. D. Stokes against Frederick E. Hyde for specific performance. From a judgment dismissing his complaint, ■plaintiff appeals.
Affirmed.
Argued before VAN BRUNT, P. J., and BARRETT, RUMSEY, O’BRIEN, and INGRAHAM, JJ.
p. 718
Clarence L. Westcott, for appellant.
Edward D. Cowman, for respondent.

Upon the first trial 'of this action specific performance was decreed, the court holding that the title tendered by the plaintiff was marketable. The defendant appealed to this appellate division, and that appeal was transferred to the appellate division in the Second department. That appellate division reversed the judgment, and ordered a new trial, holding that plaintiff’s title was not marketable. The opinion was unanimous, and it will be found reported in 14 App. Div. 530 , 44 N. Y. Supp. 132 . Upon the new trial thus awarded the plaintiff’s complaint was dismissed.. The facts were substantially the same as upon the first trial. The decision of the appellate division in the Second department is, under the circumstances, the law of the case in this court.

The judgment should therefore be affirmed, with costs.

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