Jackson v. City of Rochester — 35 N.Y. St. Rep. 73

Majority

p. 73

Micajah W. Jackson, Resp’t, v. The City of Rochester, App’lt.

(Court of Appeals, Second Division,

Filed January 14, 1891.)

Headnote

Appeal—When brought unnecessarily—Code Civ. Pro., § 3251.

When two actions differing in no material respect were brought and judgments obtained against defendant and one of them affirmed in this court December 20, 1887, and yet in spite of such affirmance defendant persisted in its appeal upon this action which had been taken March 23, 1886, although all the questions had been finally passed upon in the other appeal, the court, as damages by way of costs for the delay, gave plaintiff ten per cent, upon the amount of the original judgment.

Appeal from a judgment of the general term of the supreme court in the fifth judicial department, denying a motion of the defendant for a new trial and ordering judgment for the plaintiff upon a verdict in his favor rendered on trial at circuit

Henry J. Sullivan, for app’lt; George A. Benton, for resp’t

This case differs in no material from one recently decided by this court against the same defendant Hooker v. City of Rochester, 107 N. Y., 676 ; 12 N. Y. State Rep., 864.

Mo attempt was made by the learned counsel for the appellant to distinguish the two cases, and a careful examination of the appeal book in each enables us to say that no distinction in fact exists. As the same questions arising out of substantially the same facts are brought before the court a second time, it is our duty to pronounce the same judgment

This appeal was taken March 23, 1886, and the decision in the Hooker case was handed down December 20, 1887. As the defendant persisted in its appeal and insisted upon arguing it after all the questions involved had been finally passed upon by this court nearly three years before, we award to the plaintiff as damages by way of costs for the delay, pursuant to § 3251 of the Code of Civil Procedure, ten per cent upon the amount of the original judgment

Judgment affirmed, with costs and an allowance of ten per cent upon the amount of the original judgment

All concur, except Bradley and Haight, JJ., not sitting.