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Kellegher v. Forty-Second Street, Manhattanville & St. Nicholas Avenue Railway Co.

84 N.Y.S. 784 Court N.Y. App. Div. Decision date 1903-11-20 English

Delivered by INGRAHAM, J.

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p. 784
KELLEGHER v. FORTY-SECOND ST., M. & ST. N. AVE. RY. CO.
(Supreme Court, Appellate Division, First Department.
November 20, 1903.)

Headnote

1. Appeal—New Trial—Law op Case—Effect on Second Appeal.
Where, on a former appeal to the Appellate Division, it was' held, on affirmance, that the question raised was for the jury, and on appeal to the Court of Appeals the judgment was reversed, but on grounds of error in a charge, the verdict could not be set aside on a second appeal to the Appellate Division as against the weight of evidence.
Appeal from Trial Term, New York County.
Action by Eliza M. Kellegher against the Forty-Second Street, Manhattanville & St. Nicholas Avenue Railway Company. From a judgment for plaintiff and from an order denying a new trial, defendant appeals. Affirmed.
Argued before VAN BRUNT, P. J., and HATCH, PATTERSON, INGRAHAM, and LAUGHLIN, JJ.
Henry Melville, for appellant.
George M. Brooks, for respondent.

The only attack upon this judgment by the appellant is that the verdict of the jury is against the weight of evidence. When the case was before this court on a former appeal ( 56 App. Div. 332 , 67 N. Y. Supp. 767 ), it was held that the question was one for the jury, and the judgment was affirmed. There was a dissent in that case, based entirely upon an exception to the charge. Upon an appeal to the Court of Appeals ( 171 N. Y. 309 , 63 N. E. 1096 ) that judgment was reversed upon the ground that there was error in the charge, to which the defendant excepted, and which entitled the defendant to a new trial. We think that, in view of this determination of the court upon the former appeal, we would not be justified m setting aside the verdict upon the ground that it was against the weight of evidence.

It follows that the judgment and order appealed from must be affirmed, with costs. All concur.

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