Majority
p. 892William Evans, Pl’ff, v. United States Life Insurance Company, Def’t. (Supreme Court, General Term, Second Department, Filed December 10, 1888.)
Headnote
Appeal—Decision on former appeal—Decision to be regarded as final.Where on a previous appeal all the measures for relief now asked for were before the court and considered and refused, that disposition must -be regarded as final.
Appeal by William M. Hebberd from an order made by Mr. Justice Barnard, denying a motion by said Hebberd, assignee of plaintiff, to be substituted as plaintiff and for leave to serve an amended complaint.
The plaintiff Evans m February, 1874, brought this action to recover upon a policy of insurance issued on the life of one Starr. Plaintiff recovered judgment which was reversed in the court of appeals and in February, 1876, judgment absolute was entered in favor of plaintiff and against defendant for costs m pursuance of the stipulation on appeal. William W. Hebberd in February, 1878, claiming under an assignment from Evans, executed subsequently to the entry of judgment in 1876, brought an action on the, same policy which action was stayed on account of nonpayment of costs adjudged against Evans as plaintiff in
p. 893
1876. Hebberd in December, 1886, obtained an order opening the Evans judgment substituting him as plaintiff and granting him leave to serve an amended complaint.
In 1887, this order was reversed at general term, the court holding that, “the stipulation (on appeal of Evans), covered the whole case and that the policy was destroyed by at.” After this decision Hebberd obtained an order from-Justice Dykman, requiring defendant to show cause why he should not be substituted as plaintiff in place of Evans and allowed to file an amended complaint. The motion was .denied mainly upon the ground that this decision of the general term in 1887 was a bar. From the order denying "that motion this appeal is taken by Hebberd.
Henry C. Wilcox, for app’lt; Jay, Candler & Brush, for resp’t.
The relief prayed for in the present motion was denied by this general term, December 15,.1885. The motion then made covered the same ground as the present, and perhaps more. It was competent for the court at that time to grant plaintiff’s motion in part and deny it in part.
. The denial was complete and absolute. All the measures •of relief now asked for were then considered. Having been refused after full discussion that disposition must be regarded as final.
So much has been written upon the previous occasions when the matter has been before the court that we see no advantage in more extended discussion.
Order affirmed, with ten dollars costs.
Dykman, J., concurs.