The facts in this case were before the court in a former action, and it was then held that they established no breach of the condition of the deed under which defendants make, title. See 45 Hun, 592. That question, among others, was argued before the court of appeals, which in 118 H. Y. 502, 517, 23 H. E. Rep. 904, was also of opinion that the condition was not violated. As the views expressed by this court as to the legal effect of the facts have been expressly approved, we should scarcely feel at liberty to depart from our decision in 45 Hun, if we were in doubt of its correctness", but upon re-examination we are confirmed in our opinion, as there expressed. According to those views the plaintiff should have been nonsuited at the close of his case. The plaintiff argues that the previous judgment is not binding .upon us as an adjudication. However that may technically be, the opinion of our appellate court upon a fixed state of facts, rendered upon full argument, cannot be disregarded. The judgment must be reversed upon the facts, and a new trial ordered; costs to abide the event.