(dissenting):
When tbis case was before the Commission of Appeals, that court, in respect to it, was not only the court of last resort, but was possessed of the supreme and exclusive' jurisdiction to determine the questions involved in the particular case. The court held that the plaintiffs could maintain this action, and reversed the judgment of the Supreme Court (whicli had dismissed the complaint), and ordered a new trial. (51 N. Y., 510.) This appeal is from the judgment of the Special Term rendered upon the new trial thus ordered. It appears, that subsequently to the argument of this case in the Commission of Appeals, the case of Thurber v. Blanck, which involved the same question, was argued before the Court of Appeals, and the question involved in both cases was under consideration at the same time by both tribunals. The case in the Court of Appeals was first decided, and the opinion of that cdurt appears in 50 N. Y., 80. That decision, it seems, was not brought to the notice of the Commission of Appeals before judgment was pronounced in this case. The decisions of the two courts are in direct conflict. The only question presented on this appeal is, which of these decisions was obligatory upon the Special Term on the trial of this action. The Special Term held that it was bound to follow the decision of the Court of Appeals in Thurber v. Blanck, and accordingly dismissed the plaintiff’s complaint. The question in the case was not one of sta/re decisis, but of res adjudícala between the parties to a particular action. The decision of the Court of Appeals in Thurber v. Blanck (ubi supra), and which has been substantially reiterated in Lynch v. Crary (52 N. Y., 183), is undoubtedly the law of the State to be followed in those and all subsequently occurring cases ; but those decisions are not .at all at war with the doctrine of res adjudicata as between the parties to an action, when the same question in the same case is brought to the consideration of an inferior tribunal upon a retrial of the action. Nor is the question what the court of last resort may or ought to do in the particular case, when it again reaches that tribunal, properly before the subordinate court upon such retrial. Both by reason and authority, the court in which the retrial is had is bound, by the doctrine of res adjudícala, to accept the law of the case as established by the appellate tribu*435nal. Hence we think that the Special Term should, in this case, have received the law as settled by the Commission of Appeals, without looking beyond the decision of that court to ascertain what another tribunal had decided in other cases. It was not the duty of the Special Term to pass upon the merits of the two conflicting decisions, but to respect the decision of the Commission of Appeals as establishing the law applicable to the facts of the case before it, and to be applied thereto by all subordinate tribunals. This rule has been, as we think, established and applied by the Court of Appeals in several cases where the decisions of the Commission of Appeals were sought to be reviewed upon subsequent appeals in the same actions. In Terry v. Wait (56 N. Y., 91), which was a case that went down for a new trial upon the decision of the Commission of Appeals, and came before the Court of Appeals after the second trial, the latter court said: “ Without intimating doubts as to the correctness of the decision of the commission, we decline to interfere with it on the ground that it is an adjudication between the same parties in the same case, upon the very point which we are now asked to consider.” And upon motion for a reargument of that case the court reiterated its refusal to review the decision. In Justice v. Lang (52 N. Y., 323), which was a second appeal of the same case to the Court of Appeals, the court held that its former decision (reported in Justice v. Lang, 42 N. Y., 493), must be regarded as the law of the case, and the judge who delivered the opinion said: “ The question is not merely whether the ease as reported is an authority to be followed as a precedent, but whether the judgment is not to be regarded as final in the same case, and between the same parties, in the absence of any new evidence or other circumstance to take it out of the rule.” The court held in another case recently before it (Sackett v. Ayrault), “that it would not reconsider the question deliberately decided by the court upon a former appeal in the same case, but would adopt and follow such decision. Whether, therefore, the case was well decided as reported in 42 New York, will not be considered.” And in Belton v. Baxter (58 N. Y., 411), which is a case in which the Commission of Appeals had reversed the judgment and ordered a new trial (as will appear by Belton v. Baxter, 54 N. Y., 245), the Court of Appeals on appeal from such new trial say: “ Upon the former *436appeal in this action, it was held that the plaintiff should have been nonsuited upon his own showing, the learned Commission of Appeals holding that under the circumstances then appearing in evidence, the plaintiff was culpably negligent in attempting to cross the street upon the mere calculation of the chances of injury and that “if the evidence upon the second trial had been the same as upon the first, the plaintiff would have been concluded by this adjudication. The question recurring in the same action between the same parties, would have been res adjudicaba in this and in all other courts, by the judgment of the court of last resort.” These cases we think are siifficient adjudications of the rule to require us to reverse the judgment of the court below. They are not without abundant authority and support. In Martin v. Hunter’s Lessee (1 Wheaton, 355), the court say: “ In ordinary cases a second writ of error has never been supposed to draw in question the propriety of the first judgment, and it is difficult to see how such a proceeding could be sustained upon principle. A final judgment of this court is supposed to be conclusive upon the rights which it decides.” (See Hopkins v. Lee, 6 Wheat., 113; Ex parte Sibbald, 12 Peters, 492; Washington Bridge Co. v. Stewart, 3 How. [U. S.], 413 ; Roberts v. Cooper, 20 id., 480 ; see also Akerly v. Vilas, 24 Wis., 165, where the effect of the doctrine of res adjudicata in the same action between the same parties is very fully and ably considered.) It is not for us to determine whether the Court of Appeals under the peculiar circumstances of this case, ought or ought not to regard itself bound by the decision of the Commission of Appeals. That is a question which peculiarly belongs to that tribunal as the court of last resort, and no subordinate tribunal is justified in anticipating what its ruling may be. We think that the learned judge below erred in anticipating that the Court of Appeals would take this case out of the established doctrine of res adjudicata, and that it is our duty to correct the error, leaving to the court of last resort the province of subjecting the case, if it think proper to do so, to the general law of the State as is now settled by its own decisions. I think the judgment ought to be reversed and new trial ordered with costs to abide the event.
Judgment affirmed.