
    Micajah W. Jackson, Respondent, v. The City of Rochester, Appellant.
    (Argued December 5, 1890;
    decided January 14, 1891.)
    Appeal from judgment of the General Term of the Supreme Court in the fifth judicial department, entered upon an order made January 25, 1887, which denied a motion of the defendant for a new trial and ordered a judgment for the plaintiff upon a verdict in his favor.
    The following is the mem. of opinion herein:
    “ This case differs in no material respect from one recently decided by this court against the same defendant (Hooker v. City of Rochester, 107 N. Y. 676).
    “No attempt was made by the learned counsel for the appellant to distinguish the two cases, and a careful examination of the appeal book in each enables us to say that no distinction in fact exists. As the same questions, arising out of substantially the same facts, are brought before the court a second time, it is our duty to pronounce the same judgment.
    “ This appeal was taken March 23, 1886, and the decision in the Hooker case was handed down December 20, 1887. As the defendant persisted in its appeal, and insisted upon arguing it after all the questions involved had been finally passed upon by this court, nearly three years before, we award to the plaintiff as damages by way of costs for the delay, pursuant to section 3251, subdivision 5, of the Code of Civil Procedure, ten per cent upon the amount of the original judgment.
    “The judgment should be affirmed, with costs, and an allowance of ten per cent upon the amount of the original judgment.”
    
      Henry J. SulUvan for appellant.
    
      George A. Renton for respondent.
    
      Per Guriam opinion for affirmance.
   All concur, except Bradley and Haight, JJ., not sitting.

Judgment affirmed.  