
    Charles M. Hall, Respondent, v. Burr B. Andrews, Appellant.
    (Submitted January 13, 1875;
    decided May term, 1875.)
    This action was originally commenced in Justice’s Court to recover a balance of ninety dollars alleged to be due on the sale of a quantity of hay. Defendant, among other things, pleaded in bar a judgment in his favor in Justice’s Court in an action brought by him against plaintiff for failure to perform his contract. The plaintiff obtained judgment. It was appealed to the County Court and a retrial there had. Before the retrial the judgment in defendant’s favor had been reversed on appeal and he had appealed to the General Term. Held (Reynolds and Dwight, 00., dissenting), that the reversal of the judgment in defendant’s favor destroyed its efficacy as a bar, as it thereby became a nullity; that the reversal operated retrospectively, its practical operation being to declare that when the judgment was interposed as a defence, it had no validity ; that, conceding that if the appeal to the County Court had been based upon questions of law only, it must have given effect to the former judgment as a bar, yet, as defendant had in his notice of appeal demanded a new trial, the issues were re-tried without reference to the former trial, and were unaffected by the evidence then introduced; and that the appeal to the General Team did not impair the effect of the judgment of reversal.
    
      Hamid L. Follett for the appellant.
    
      F. H. Prvndle for the respondent.
   Lott, Ch. C.,

reads for affirmance. Gray and Earl, 00., concur.

Reynolds, 0., reads for reversal. Dwight, 0., concurs.

Judgment affirmed.  