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Moore v. Simmons

4 Silv. Ct. App. 313 Court Court of Appeals, Decision date 1892-06-17 English

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p. 313
Charles H. Moore, as Receiver, etc., Appellant, v. J. Edward Simmons, as Receiver, etc., et al., Respondents.
Court of Appeals,
June 17, 1892.

Headnote

Appeal. Former decision.—Where, notwithstanding the former decision of the court of appeals, the referee, upon evidence, which does not alter the defendant’s case in any aspect to his advantage, dismisses the complaint, when he ought to grant judgment in his favor, the judgment will he again reversed, and a new trial ordered.
Appeal from judgment of the supreme court, general term, fifth department, affirming judgment dismissing the complaint, entered on the report of a referee.
p. 314
John Cunneen and R. L. Burrows, for appellant.
David Willcox, for respondents.

—Upon the evidence contained in this record, the case is not altered in favor of the defendant from the case presented to this court on the former appeal, our decision of which is reported in 115 N. Y. 65 . We then held that the evidence raised only a question of law, which we decided in favor of the plaintiff.

If the views of this court upon such questions are to he followed, a plain case in favor of the plaintiff was again made out on the new trial before the referee, and judgment in favor of the plaintiff should therefore have been given. Notwithstanding our former decision, the referee, upon evidence which did not alter the defendant’s case in any aspect to his advantage, dismissed the complaint of the plaintiff, when he ought to have granted judgment in his favor.

For this clear error the judgment should again be reversed, and a new trial ordered, with costs to abide the event.

All concur.

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