A trial court, upon a remand or remittitur, is without power to do anything except to obey the mandate of the higher court and to render judgment in conformity therewith. (United States v Pink, 36 NYS2d 961, 965.) The Court of Appeals remanded this proceeding for resolution of the following issue: "Was Con Edison’s waiver of its right to discharge Hadden before his retirement, knowingly induced by Hadden through material misrepresentation?” (34 NY2d 88, 100.)
It should be stressed that the above-quoted issue is framed in language that conclusively indicates that the Court of Appeals had found that Con Edison had definitely "waived” its right to discharge Hadden before his retirement. Thus, the narrow issue presented for trial was limited to the nature and extent of Hadden’s misrepresentations, if any, to Con Edison. There is ample evidence in the record to support Justice Asch's finding that Con Edison’s waiver was knowingly induced by Hadden’s misrepresentations as to his lack of involvement in the criminal conspiracy.
The majority has found that Con Edison could not have *162waived its right to discharge Hadden since the latter had already retired on January 23 , 1968. In the record before the Court of Appeals, Hadden stressed in his affidavit that his retirement papers had been submitted before his meeting of January 26, 1968 with Luce. Notwithstanding this representation, the Court of Appeals implicitly found that there had been a waiver by Con Edison. Moreover, is should be emphasized that the record contains evidence that Hadden made misrepresentations to Con Edison before he submitted his retirement papers. But for those prior misrepresentations, upon which Con Edison relied, Hadden would most likely have been discharged before he had an opportunity to submit his retirement papers. In the final analysis, the majority opinion rejects the Court of Appeals’ finding of waiver on the part of Con Edison.
The judgment should be affirmed.
Kupferman, Lane and Markewich, JJ., concur in Per Curiam opinion; Murphy, P. J., dissents in part in an opinion.
Judgment, Supreme Court, New York County, entered on August 22, 1975, modified, on the law and facts, to vacate the first three decretal paragraphs thereof ([a], [b], and [c]) which dismissed the complaint, approved defendant-respondent’s action of January 27, 1970 rescinding pension rights of plaintiff-appellant, and declared those rights without force and effect from that date forward, substituting therefor judgment for plaintiff-appellant as prayed for in the complaint, and, as so modified, affirmed, without costs and without disbursements.
Settle order on notice.