Cluff v. Day
| Decision Date | 06 February 1894 |
| Citation | 141 N.Y. 580,36 N.E. 182 |
| Parties | CLUFF v. DAY et al. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from superior court of New York city, general term.
Action by Mary Cluff, suing in her own behalf and in behalf of all others interested in the estate of Burgess Cluff, deceased, against Henry S. Day and John Thompson. From a judgment entered for plaintiff, January 14, 1893, on an order (21 N. Y. Supp. 1133) overruling defendants' exceptions, defendants appeal. Affirmed.
Chas A. Collin, for appellants.
Edward B. Whitney, for respondent.
This is a suit to charge the sureties on a bond of a nonresident executor with the sum adjudged by a decree of the surrogate of the city and county of New York, made in 1886, on an accounting by the executor, to be due from him to the estate of the decedent. The case has been twice tried, and this is the second appeal to this court. On the first trial the defendants had judgment in their favor, on the ground that a decree made by the surrogate on a former accounting, in 1873, changed the character in which the executor had up to that time held the funds and property of the estate, and that he thereafter held them in his character as trustee, and that the devastavit by which the property of the estate was wasted and lost occurred after the decree of 1873, and was, therefore, not covered by the undertaking of the sureties, which related only to the acts of the executor as such. The judgment of the trial court on the first trial having been affirmed by the general term, an appeal was taken to this court, and was heard before the second division, which reversed the judgment below, and ordered a new trial. 124 N. Y. 195, 26 N. E. 306. The judgment of the second division was placed on the ground that the accounting and decree in 1873 did not terminate the executorial duties of the executor, or change the character in which he held the property, but that until the decree of 1886 he continued to hold it as executor, and not as trustee, and that, therefore, the sureties were liable for a failure of their principal to pay the sum adjudged against him by the decree on the second accounting. On a new trial a verdict was directed for the plaintiff for the amount adjudged by the decree of 1886, with interest. The general term, on appeal, affirmed the judgment entered pursuant to the verdict on the second trial, and this appeal is taken from the judgment of affirmance. We are asked to review and reverse the judgments so rendered by the courts below, although they were rendered in precise conformity with the principles upon which the former decision in this court proceeded. It is insisted that the second division of this court erred in its construction of the decree of 1873, and in adjudging that the character in which the property was held by the principal of the defendants was not thereby changed. The facts were not changed in any material respect on the second trial. All the material facts bearing upon the liability of the sureties, presented by the present record, were in the record on the former appeal. The law of the case was determined after full argument and consideration by the second division of this court. It would be contrary to the general rule, and present an unseemly spectacle, for this court in the same case, between the same parties, upon substantially identical facts, to reverse a judgment rendered by a co-ordinate branch of this court upon a full understanding of the facts and of the question of law involved, even although, if the case was res novo, we might be of the opinion that the law of the case...
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...the errors of others and adhering to their own.' Ellison v. Georgia, etc., Co., 87 Ga. 691, 13 S.E. 809, 810. In Cluff v. Day, 141 N.Y. 580, 36 N.E. 182, 183, the said: 'There is no iron rule which precludes a court from correcting a manifest error in its former judgment, or which requires ......
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Kimball v. City of Grantsville City
... ... Secs. 589, 613; Linn v. Minor , 4 Nev ... 462; Pratt v. Brown , 3 Wis. 532; ... Bane v. Wick , 6 Ohio St. 13; Mc ... Farland v. Pico , 8 Cal. 626; Aud v ... Magruder , 10 Cal. 282; San Francisco v ... S. v. W. W. , 48 Cal. 493; Duff v ... Fisher , 15 Cal. 375; Cluff v. Day , ... 141 N.Y. 580, 36 N.E. 182; Bird v. Sellers , ... 122 Mo. 23, 26 S.W. 668; Railroad Co. v ... Shoup , 28 Kan. 394 ... It will ... thus be seen from the foregoing considerations and ... authorities that the doctrine of stare decisis is ... not an inflexible ... ...
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...arising, but in the particular case it is 'more than authority-it is a final adjudication' between the parties" (Cluff v. Day, 141 N.Y. 580, 581-583, 36 N.E. 182) (Emphasis Thus, the effect of a prior ruling by an appellate court in a later appeal before that court, or in a subsequent stage......