Summary
In Oppenheim v. Lewis (20 App. Div. 332) and cases which have followed that decision it was held by this court that "An order not appealed from, and unreversed, is conclusive against the right of the moving party to the same relief on a second motion."
Summary of this case from Tracy v. FalveyOpinion
August Term, 1897.
Wales F. Severance, for the appellant.
Abr. R. Joseph, for the respondents.
Present — PATTERSON, RUMSEY, WILLIAMS, O'BRIEN and PARKER, JJ.
It appears from the papers in this case that the complaint was dismissed as to the defendants Lewis and Fordinsky on the 25th of August, 1896. The order dismissing that complaint reserved no right to make further application, and that order stands without modification. Subsequently, and on the 2d of October, 1896, a motion for the same relief which was granted herein was made at a Special Term held by Mr. Justice RUSSELL, who denied the motion, and that order stands unappealed from and unreversed. That order is a conclusive decision against the right of the defendants to have the relief which they asked for here.
The question as to the right to grant such relief in an action of a similar nature was submitted to the court in the case of Sheehan v. Golden (85 Hun, 462), in which it was held that the defendants other than the sheriff, upon dismissal of the complaint, were not entitled to judgment that the goods replevied be delivered to the sheriff.
For these reasons the order should be reversed, with ten dollars costs and disbursements.
Order reversed, with ten dollars costs and disbursements.