We have examined the record in this case, and are of the opinion that the evidence before us taken on the new trial does not differ materially from that which was before this court on the previous appeal, in which the law was clearly laid down, which should govern the disposition of the action. Rohner v. Lenisch, 29 Misc. Rep. 315. It was the law of the case, and should have been followed by the court below. It seems, however, to have been disregarded. The judgment must accordingly be reversed. See also Curtiss v. Mott, 90 Hun, 439. As the plaintiff on the new trial, which was ordered on the former appeal, has had a full opportunity to strengthen his case by additional evidence, and has failed to do so, we are satisfied that it would be futile to order a new trial, and that the complaint should, therefore, be dismissed.
Present: Beekmam, P. J., Giegerich and O’Gormmm, JJ.
Judgment reversed, with costs, and complaint dismissed, with costs.