April Term, 1898.
Present — Van Brunt, P.J., Barrett, Rumsey, Patterson and McLaughlin, JJ.
Judgment reversed, new trial ordered, costs to appellant to abide event. —
Upon the first trial the complaint was dismissed, but upon appeal the judgment was reversed and a new trial ordered upon the ground that the question involved should have been submitted to the jury. ( 13 App. Div. 101.) Upon the second trial the learned trial justice again dismissed the complaint, notwithstanding the fact that the evidence offered was substantially the same as that presented upon the first trial. The law declared by the court on the first appeal is the law of the case. The learned justice, for some reason which does not ap-appear, did not see fit to apply the law as there declared. The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.