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Bathrick v. Coffin

50 N.Y.S. 894 Court N.Y. App. Div. Decision date 1898-04-07 English

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p. 894
BATHRICK v. COFFIN.
(Supreme Court, Appellate Division, First Department.
April 7, 1898.)

Headnote

Appeal—Law of the Case—Second Trial.
Where judgment dismissing a complaint is reversed, and a new trial ordered, upon the ground that the question involved should have been submitted to the jury, and upon the second trial the evidence is substantially the same, the law declared by the court on the appeal is the law of the case, and a second dismissal is improper.
Appeal from trial term.
Action by Ellsworth R. Bathrick against Charles E. Coffin. From a judgment dismissing the complaint; plaintiff appeals. Reversed.
Argued before VAN BRUNT, P. J., and BARRETT, RUMSEY, McLaughlin, and patterson, jj.
Isaac N. Miller, for appellant.
William G. Romaine, for respondent.

Upon the first trial the complaint was dismissed, but upon appeal the judgment was reversed, and a new trial ordered upon the ground that the question involved should have been submitted to the jury. 13 App. Div. 101 , 43 N. Y. Supp. 313 . Upon the second trial the learned trial justice again dismissed the complaint, notwithstanding the fact that the evidence offered was substantially the same as that presented upon the first trial. The law declared by the court on the first appeal is the law of the case. The learned trial justice, for some reason which does not appear, did not see fit to apply the law as there declared.

Judgment reversed, and new trial ordered, with costs to the appellant to abide the event.

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