
    Constance B. Price, App’lt, v. DeWitt C. Holman et al., Resp’ts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed November 30, 1891.)
    
    Dismissal of complaint—Second trial.
    . Upon the trial of a cause at circuit the complaint was dismissed upon the merits. At general term the judgment was reversed and a new trial granted. Upon a second trial the evidence, largely documentary, was substantially the same as upon the first trial, but the court again dismissed the complaint. Held, error.
    Appeal from judgment entered upon a dismissal of the complaint at circuit.
    
      Lansing & Cantwell (James Lansing, of counsel), for app’lt; A. D. Wait, for resp’ts.
   Learned, P. J.

This litigation in its two actions has been •often before the courts. The first, commenced in 1873, under the title- of Price v. Brown, was decided in this court January, 1884, affirmed 98 N. Y , 388. “

In .that case and in the second a motion to pay money into court was made and granted, which was, in certain material respects, reversed in this court November, 1885, reported in mem., 38 Hun, 641, and the appeal from the reversal to the court of appeals was ■decided March 6, 1886.

This second action, commenced in 1883, was tried in March, 1887, before the special term without a jury, and the complaint was dismissed on the merits. On appeal the judgment was reversed, and a new trial granted, costs to abide the event, July 3, 1888. 17 St. Rep., 572. It came on to be tried again in June, 1890. The case was tried, so far as we see, upon the same evidence as before. The learned justice who tried it says, in his ■opinion: “ The case as submitted on this trial is substantially the •same as on the former trial. The respondent’s brief admits this.” But the learned justice dismissed the complaint on the merits. He says “ that the general term did not see in this case, as then presented, room to sustain the plaintiff’s claim.” If this were so the general term would not have granted a new trial. Ho question as to the exclusion of evidence, and no disputed .question of fact were before them. Indeed the facts were almost entirely -documentary. We cannot unnderstand, therefore, when the •general term reversed a dismissal of the complaint on the merits and granted a new trial how it could be thought that the opinion of that court “ assumed,” as is said by the learned justice, “ that, further proof and investigation might yet develop a state of facts that would render the estate thus liable.” If the facts proved on the former trial did not show the defendants to be liable, then the’ dismissal of the complaint on that trial was right and would have been affirmed. It was reversed because it was erroneous. And as the same evidence was produced on the second trial, the dismissal of the complaint on that trial was erroneous also.

We do not propose to discuss the merits of the case again when we have once decided the matter. We simply refer to the* former decision. If the defendants consider that erroneous, they have the remedy of appeal.

Judgment reversed, new trial granted, costs to abide the event..

Landon and Mayham, JJ., concur.  