
    Edward La Montagne, Jr., and Others, Appellants, v. The Bank of New York, National Banking Association, Respondent.
    First Department,
    December 2, 1910.
    Stare decisis — when law established by Court of Appeals binding on appeal for new trial.
    An opinion of the Court of Appeals establishing, the law of a case is binding on a second appeal to the Appellate Division unless new facts have been established upon the retrial so that the former opinion is no longer applicable. '
    Appeal by the plaintiffs, Edward La Montagne, Jr., and others, from a judgment of the Supreme Court in. favor of the defendant, entered in the office of the cleric of the county of New York on the 25th day of March, 1910, upon the report of a referee dismissing the complaint.
    
      A. G. Brown, for the. appellants.
    
      William B. Hornllower, for the respondent..
   Scott, J.:

This case has once been to the Court of Appeals, and its opinion (183 N. Y. 173) contains the law of the case 'which we are bound to follow, unless such new facts' have been established upon the retrial that the former opinion is no longer applicable. We have examined the record with care in-the light of the former opinions, and have. been able to find no new facts which would justify us in applying any different rule of law than that heretofore applied. It is now made clear that the articles of copartnership had' not been signed when the deposit of $200,000 was made to the credit of the new firm, but they had been signed when the check for $60,000 was drawn and deposited to the credit of the old firm, although the requisite certificate to do business had not yet been filed. The Court of Appeals held that the deposit of. the $200,000 check established the relation of debtor and creditor between the bank and the new firm, and that this relation would have continued if the certificate had never been filed. The deposit was made with a view to the formation of the new firm, and the moment that firm was organized the partners had a right to draw upon the account in the firm name, and the bank was bound to honor their checks. We find nothing in the circumstance that the deposit was made before the copartnership was formed to render the opinion of the Court of Appeals inapplicable. It also now appears that the old firm was actually insolvent when the new firm was organized, but it does not appear that either of the Pultons knew this fact. It does clearly appear from the evidence that it was the intention of the parties (although not so expressed in the articles) that the new firm should take over and continue the business of the old, and, in point of fact,' it did so, paying the debts of the old and taking whatever there was of assets. As was said by the Court of Appeals, the'new firm, was bound to pay the debts of the old up to the value of the assets, at least. The fact that the assets ultimately fell short of the whole indebtedness cannot make the bank liable for a check, regular upon its face, given in payment of a Iona ficle debt. We find nothing in the new facts to justify any different result from that which was arrived at before.

The judgment is, therefore, affirmed, with costs.

Ingraham, P. J., McLaughlin, Clarice and Dowling,- JJ., concurred.

Judgment affirmed, with costs.  