Corn v. Rosenthal — 51 N.Y. St. Rep. 858

Majority

p. 858

Samuel Corn et al., Appl'ts, v. Joseph Rosenthal, Resp’t.

(New York Common Pleas, General Term,

Filed March 16, 1893.)

Headnote

Appeal — Second—Questions before the court.

The deeision on a former appeal becomes the law of the case, and on a second appeal nothing is before the court but the proceedings subsequent to the mandate.

Appeal from judgment of a district court

Norwood & Coggeshall, for app’lts; F. R. Minrath, for resp’t.

On a second appeal the court will not review or reversq a decision made on a prior appeal in the same case. Heffner v. Brownell, 75 Iowa, 341 ; Adams Co. v. Burlington, etc., R. R. Co., 55 id.,94. The decision on the former appeal becomes the law of the case, Doyle v. Wade, 23 Fla., 90 ; Goodman v. Walker, 30 Ala,, 482 ; Frisby v. Parkhurst, 29 Md., 58 ; Johnston v. San Francisco Sav. Union, 75 Cal., 134 ; and upon the second appeal nothing is before the court for adjudication but the proceedings subsequent to the mandate. Fortenberry v. Frazier, 5 Ark., 200 ; 39 Am. Dec., 373 . An opinion of the appellate court determining the case upon two distinct and sufficient grounds is to be treated, when cited as authority, as decisions upon both grounds, not as dicta on either. Bates v. Taylor, 87 Tenn., 319 .

It is sought, by the present appeal, to reverse the judgment because of the admission of parol evidence claimed to be repugnant to the terms of a written agreement. But, on a previous appeal to this court the precise point was presented; and the adjudication was in favor of the competency of the evidence. Corn v. Rosenthal, 48 St. Rep., 674 .

True, the court also decided that the justice erred in withholding the issues from the jury; but, nevertheless, the adjudication

p. 859

on the question of evidence at the former trial stands as the law of the case; and we perceive in the return before us no allegation of error not passed upon on the prior appeal. e The evidence on the trial under review varied in no essential circumstance from the evidence at the first trial.

Although the question now agitated be of difficult and doubtful solution, we are concluded by our former determination. The appellant’s remedy was by an application for a re-argument of the original appeal. Windsor v. Cobb, 74 Iowa, 709 .

Judgment affirmed, with costs.

Bischoff, J., concurs.