The evidence adduced upon the last trial is substantially the same as that adduced upon the preceding one. There is no material change whatever, unless it be that the evidence on the part of the defendant has been strengthened. On the last appeal, this court, in reversing the judgment and ordering a new trial, held that the verdict was against the evidence, not only as to the defendant’s negligence, but also as to the contributory negligence of the deceased. (65 App. Div. 611.) That is the law of the case, binding upon the trial court, and I think upon this court, notwithstanding the personnel of it is changed.
*309But it is said the order should be reversed and the verdict reinstated because a jury has four times found in favor of the plaintiff. A wrong committed, no matter how often, never makes a right. This verdict is wrong; it is the result of misconception, prejudice or partiality and ought not to be approved by the court. Upon substantially the same state of facts we have several times declared that the plaintiff ought not to recover,, and yet we are about to permit a recovery, because the jury forsooth have, for the fourth time, committed the same wrong. The law imposes a duty upon this court to review verdicts, and whenever it can be seen that injustice has been done, by reason of the jury not properly considering the evidence, or that its action has been influenced either by prejudice or partiality, then the court ought, in the discharge of its duty, to fearlessly exercise the power given to it by the statute (Code Civ. Proc. § 1317) and right the wrong by setting the verdict aside and ordering a new trial, and this as many times as may be necessary to accomplish the proper result. Justice never tires, and an act ought not to be approved in its name which wrongfully takes property from one person and gives it to another.
I think the order appealed from should be affirmed.
Ingraham, J., concurred.
Order reversed and verdict reinstated, with costs of appeal to appellant.