Post v. Bernheimer

The judgment from which the appeal has been taken was recovered upon a trial, following the reversal of a preceding judgment in favor of the defendant. The trial appears to have taken place in conformity to the directions contained in the decision for that purpose made by this feneral term. The case, as it was then disposed of, is reported in 31 Hun, 247 . ome additional proof was given upon the last trial, but not distinguishing the case as to the legal rules applicable to it, from its condition when it was presented to the general term upon which the last decision was made. The appeal, therefore, presents no point for the examination and decision of the court beyond the fact that it has been tried and disposed of according to its preceding direction. All that becomes necessary, therefore, is to affirm the judgment in order that the case may be placed in a condition to be appealed to the court of appeals to which it is designed to take it. The judgment, therefore, should be affirmed with costs to the respondent.

The Case of John A. Post and others, resp’ts, Matilda Weil, executrix, etc., and others, app’lts, depends upon the same evidence as the one above considered. The controlling principles applicable to it are the same as have led to the disposition which was made of the other action, and the same result should follow, that the judgment should be affirmed, together with costs to the respondents.

Van Brunt, P. J., and Brady, J., concur.