
    Micajah W. Jackson, Respondent, v. City of Rochester, Appellant.
    
      Court of Appeals,
    
    
      Jan 14, 1891.
    
      Appeal. Court of Appeals.—Where the appellant persists in an appeal and insists upon arguing it after all the questions involved have been finally passed upon by the court of appeals nearly three years before, the latter court will award to the respondent, as damages by way of costs for the delay, pursuant to § 3251 of the Code, ten per cent upon the amount of the original judgment.
    Appeal from the judgment of the general term of the supreme court, entered upon an order denying a motion for a new trial and directing a judgment upon a verdict.
    
      Henry J. Sullivan, for appellant.
    
      George A. Benton, for respondent.
   Per Curiam.

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; 12 N. Y. State Rep. 864.

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 sub-

stantially 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 § 3251 of the Code of Civil Procedure, ten per cent upon the amount of the original judgment.

Judgment affirmed, with costs and an allowance of ten. per cent upon the amount of the original judgment.

All concur, except Bradley and Haight, JJ., not sitting.  