
    Foley v. City of Troy.
    
      (Supreme Court, General Term, Third Department.
    
    November 20,1888.)
    Appeal—Review—Former Appeal—Res Judicata.
    Where a judgment has been reversed by the general term for insufficiency of the evidence to support the verdict, and on a second trial the testimony is substantially the same as before, the decision on the former appeal, having been on the merits, will be held conclusive, and a similar verdict set aside on the same ground
    Appeal from circuit court, Rensselaer county.
    Action by John A. Foley against the city of Troy for injuries received by a fall occasioned by a defective sidewalk. A verdict and judgment for plaintiff was set aside on appeal by the general term. 45 Hun, 396. A second trial resulted in another verdict for plaintiff, and judgment thereon. Defendant again appeals.
    Argued before Learned, P. J., and Landon and Ingalls, JJ.
    
      R. A. Parmenter, for appellant. H. A. King, for respondent.
   Ingalls, J.

This action was tried at the Rensselaer circuit November 9, 1886, and resulted in a verdict in favor of the plaintiff for $800, upon which judgment was entered, with costs, in favor of the plaintiff. An appeal was taken by the defendant to the general term, which was composed of Justices Learned, Bookes, and Landon. The judgment was reversed upon the ground that the evidence was insufficient to establish negligence on the part of the city of Troy in omitting to keep the sidewalk where the plaintiff fell, and was injured, in a safe condition. The cause was again tried November 22, 1887, and a verdict was rendered in favor of the plaintiff for $1,000, upon which, with costs, judgment was entered in favor of the plaintiff, and an appeal was taken therefrom by the defendant to this court.

The only material question upon this appeal seems to be whether the plaintiff succeeded in changing the facts of the case favorably to himself, upon the last trial, from what they were upon the former trial, to such an extent as to ■overcome the objection to a recovery which was entertained by this court upon the facts presented upon the former appeal. If the facts have not been essentially changed by the last trial by strengthening the plaintiff’s case in regard to the question upon which the former judgment was reversed, the plaintiff must be held to have failed to establish a cause of action against the ■defendant upon the last trial. The decision of this court upon the merits in the same cause, and between the same parties, and in regard to the same subject-matter, must be regarded so far conclusive as not to be open for further ■discussion upon the merits in this court, unless we are convinced that the law has been changed since the reversal of the former judgment in such manner as to modify favorably to the plaintiff’s ease the legal effect of the facts established upon the former trial. We fail to discover any such change in the law. We have examined with care the evidence produced upon both trials as contained in the printed books, and fail to discover wherein the plaintiff has succeeded in strengthening his case upon the merits upon the last trial from what it was upon the former trial in regard to the material question involved. It is true, the plaintiff gave some evidence upon the last trial to the effect that water had not been spilled upon the sidewalk previous to plaintiff’s injury, doubtless for the purpose of answering the suggestion contained in the opinion of Justice Learned, which was the following: “But the ice might be formed from water accidentally or intentionally spilled.” We are satisfied, after reading the opinion, that no controlling effect was intended by such suggestion. The facts of both trials, so far as they bear upon the material question involved, viz., the negligence of the defendant, are substantially the same, and consequently the plaintiff failed to make a case which entitled him to recover, consistently with the decision made by this court upon the former appeal. The judgment must therefore be reversed, with costs.

Learned, P. J., and Landon, J., concur.  