Rohner v. Lenisch — 65 N.Y.S. 233

Majority

p. 233

ROHNER v. LENISCH.

(Supreme Court, Appellate Term.

June 13, 1900.)

Headnote

Reversal—Second Appeal.

Where a trial court disregards the observations of the appellate court on the law of the case in reversing a judgment in favor of plaintiff and granting a new trial, and renders the same judgment, from which a second appeal is taken, the judgment will be reversed.

Appeal from municipal court, borough of Manhattan, Third district.

Action by Charles Bohner against Philip Lenisch to recover a broker’s commission. From a judgment in favor of plaintiff, defendant appeals.

Reversed.

p. 234

Argued before BEEKMAN, P. J., and GIEGERIOH and O’GORMAN, JJ.

P. & D. Mitchell, for appellant.

Schmuck & Gulick, for respondent

We have examined the record in this case, and are of the opinion that the evidence before us, taken on the new trial, does not differ materially from that which was before this court on the previous appeal, in which the law was clearly laid down which should góvern the disposition of the action. Rohner v. Lenisch, 29 Misc. Rep. 315 , 60 N. Y. Supp. 543 . It was the law of the case, and should have been followed by the court below. It seems, however, to have been disregarded. The judgment must accordingly be reversed. See, also, Curtiss v. Mott, 90 Hun, 439 , 35 N. Y. Supp. 983 . As the plaintiff on the new trial which was ordered on the former appeal has had a full opportunity to strengthen his case by additional evidence, and has failed to do so, we are satisfied that it would be futile to order a new trial, and that the complaint should therefore be dismissed.

Judgment reversed, with costs, and complaint dismissed, with costs.

Cases cited

Rohner v. Lenisch 29 Misc. Rep. 315 N.Y. App. Term 1899-10-25 p. 234