Moore v. Prudential Insurance Co. of America — 95 N.Y.S. 1147

Majority

p. 1147

MOORE, Respondent, v. PRUDENTIAL INS. CO. OF AMERICA, Appellant.

(Supreme Court, Appellate Division, Third Department.

November 15, 1905.)

Headnote

Appeal from Trial Term, Saratoga County. Action by Charles Moore, as administrator of Daniel Wesley Moore, deceased, against the Prudential Insurance Company of America. From a judgment in favor of plaintiff and from an order denying a new trial, defendant appeals. Reversed; For former appeal, see 92 App. Div. 135 , 87 N. Y. Supp. 368 .

An examination of this case shows that the same facts were established upon the second trial as appeared on the first, trial and were considered! by us on the first appeal,, that there is no evidence on this trial discrediting such facts or in any manner tending to change or explain their significance, and that the same conclusions must be drawn from them now that were then drawn from them;' and for that reason this judgment and order must be reversed, and a new trial granted, with costs to the appellant to abide the event.

SMITH, J., dissents. HOUGHTON, J., not voting, not being a member of this court at the time the decision was handed down.

Cases cited

Moore v. Prudential Insurance Co. of America 92 App. Div. 135 N.Y. App. Div. 1904-03-15 p. 1147