
    Gotham Construction Corporation, Appellant, v. The City of New York, Respondent.
   Judgment and order unanimously affirmed, with costs. Upon the former appeal to this court by the defendant it was held that there was no question of fact for the jury as to the meaning of the words “ mean high water elevation 100°° Transit Comm, datum.” This court, however, granted the plaintiff a new trial upon the theory that the plaintiff might be entitled to damages for misrepresentations or concealment of material facts in regard to the actual level of the ground water (225 App. Div. 829). The plaintiff, however, upon the new trial proceeded upon the same theory that it invoked on the first trial. It necessarily follows, therefore, that, under the previous decision, there are no facts set forth in plaintiff’s complaint and no issues are presented other than those as to which the plaintiff was concluded by the determination of this court on the former appeal. Errors in rulings and instructions of the trial court are harmless and constitute no ground for reversal where the party excepting thereto was not entitled to prevail in any event. (Wood v. Wyeth, 106 App. Div. 21; Bradley v. Village of Union, 164 id. 565; affd., 221 N. Y. 591.) Present — Lazansky, P. J., Kapper, Hagarty, Carswell and Scudder, JJ.  