Roe v. Strong — 24 N.Y. St. Rep. 709

Majority

p. 709

Alfred Roe and Ano., as Executors, etc., App’lts, v. Caroline A. Strong et al., Resp’ts.

(Supreme Court, General Term, Second Department,

Filed June 28, 1889.)

Headnote

Judgment—Decision op court op appeals controlling.

Where, as the result of a new trial, the plaintiffs’ complaint is dismissed in obedience to the requirement of a decision of the court of appeals on an appeal from a judgment on the former trial, and the case made by the plaintiff ou appeal from such dismissal is no better than it was when it was in the court of appeals, that decision is controlling until the latter court determines otherwise.

Appeal from a judgment rendered at special term in an action tried without a jury, dismissing plaintiff’s complaint.

Roe & MacMin, for app’lts; Strong & Spear, for resp’ts.

This action was brought to procure the removal of a bridge which the plaintiff claimed was erected upon his property, and it has been twice tried. The first trial resulted in a dismissal of the complaint, and that judgment was reversed by the general term and a new trial was granted.

The second trial was before a judge without a jury, and he rendered judgment in favor of the plaintiff, which was affirmed by the general term and reversed by the court of appeals, and another new trial ordered. 12 N. T. State Eep., 56.

Such new trial has now been had, and it resulted in a dismissal of the complaint in obedience to the requirement of the decision of the court of appeals as that decision was understood by the trial judge.

So far as we can see, the case made by the plaintiff is no better than it was when it was in the court of appeals, and, in our view, that decision is yet controlling, and must be so unless the court of appeals shall determine otherwise.

The judgment should, therefore, be affirmed, with costs.

All concur.