
    National Thread Co. v. Mansfield Silk & Thread Co. et al.
    
    
      (Supreme Court, General Term, First Department.
    
    January 28, 1889.)
    Stake Decisis—Decision on Former Appeal.
    Where, on a former appeal, it was decided that the complaint was erroneously dismissed, the ruling of the trial court on the second trial, denying a motion to dismiss a similar complaint, will not be disturbed.
    Appeal from circuit court, New York county.
    Action by the National Thread Company against the Mansfield Silk & Thread Company and Fanny Jacobs. From a judgment entered on a verdict for plaintiff, and from an order overruling a motion for a new trial, defendants appeal.
    Argued before Van Brunt, P.. J., and Bartlett and Daniels, J J.
    
      John H. V. Arnold, for appellants. 8. E. Eairfleld, for respondent.
   Bartlett, J.

It is impossible to reverse this judgment without taking a different view of the case from that adopted by the general term on the previous appeal. It was then held that the plaintiff was entitled to recover, inasmuch as the defendant Fanny Jacobs had received and retained in her possession a considerable amount of money belonging to the plaintiff on demand; and proof of this fact seems to have been deemed sufficient to warrant a recovery against her under the pleadings, which were then in the same form as at present. TJpon the second trial, now under review, she herself admitted the collection and possession of some of the plaintiff’s moneys. The question whether any demand had been made upon her for payment was left for the jury, and they found against her. Were it not for the former adjudication, I should entertain grave doubt as to the sufficiency of the proof to establish any liability on the part of the Mansfield Silk & Thread Company, but, as the general term then held that the complaint against this defendant was erroneously dismissed on the first trial, I think the doctrine of stare decisis requires us to sustain the learned judge who presided on the second trial in denying a similar motion to dismiss.  