Opinion
March, 1908.
Present — Patterson, P.J., Ingraham, Laughlin, Clarke and Houghton, JJ.
On a prior appeal by the defendants from a judgment entered upon a direction of verdict in favor of plaintiff this court held the facts proved raised a question for the jury and reversed the judgment and directed a new trial ( 114 App. Div. 25). On such new trial the learned trial court granted a nonsuit and the plaintiff appeals. No new facts were developed on the second trial justifying such a disposition of the case. The witnesses Muecke and Frankenhauser were examined in greater detail on the last trial but nothing new as to their course of dealing or as to the manner in which their checks were drawn was developed. Our former decision remains the law of the case and should be followed by the trial court. That decision determined that the proofs made a question of fact clearly pointed for a jury to pass upon. The nonsuit was improper and the judgment must be reversed and a new trial granted, with costs to appellant to abide the event.
Judgment reversed, new trial ordered, costs to appellant to abide event.