Opinion
February, 1933.
Present — Lazansky, P.J., Kapper, Carswell, Scudder and Davis, JJ.
Order and judgment unanimously affirmed. The findings of fact in the decision supporting the judgment of September 23, 1930, were all essential. They were based on issues tendered by the plaintiff's own pleadings and proof. The scope of those findings was not lessened by the affirmance of them by this court in connection with an opinion that indicated in some respects narrower reasons for such affirmance. If it were deemed important that these findings should be narrowed, an appropriate request for such relief should have been made, and, if improvidently denied, further relief by appeal was available to the plaintiff. Plaintiff did not pursue that remedy and, therefore, she may not again litigate the same questions through the medium of her first, second and third defenses in her amended reply.