Martin v. City of Cohoes

• Decision Date: 11 June 1975
• Citation: 371 N.Y.S.2d 687,332 N.E.2d 867,37 N.Y.2d 162
• Parties: , 332 N.E.2d 867 Leona L. MARTIN, Appellant, v. CITY OF COHOES, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 687

371 N.Y.S.2d 687

37 N.Y.2d 162, 332 N.E.2d 867

Leona L. MARTIN, Appellant, v. CITY OF COHOES, Respondent.

Court of Appeals of New York.

June 11, 1975.

Donald J. Shanley, Troy, for appellant.

Condon A. Lyons, Albany, for respondent.

FUCHSBERG, Judge.

Plaintiff commenced this personal injury action to recover damages allegedly sustained as a result of a fall when her shoe became wedged in a crevice between the curbstone and adjoining public sidewalk. In answer to the complaint, the defendant City of Cohoes pleaded that plaintiff failed to comply with a local ordinance (Cohoes City Charter, § 192; L.1915, ch. 130, as amd.) which required that the Common Council or the Commissioner of Public Works have prior actual notice of the defective condition. At a pretrial conference, defendant's attorney supplied the court with a copy of the afore-mentioned local law in further particularization of its pleaded statement that it was applicable. Motions to dismiss, predicated upon defendant's contention that plaintiff had failed to comply with the notice law as so represented to the court, were denied, and the case proceeded to trial.

At trial, plaintiff, to meet the requirements of the afore-mentioned ordinance, introduced proof that the Commissioner of Public Works, in his travels about the city, on several occasions had seen the allegedly defective condition prior to the accident. The jury was charged that a finding of such actual notice was an essential element of plaintiff's cause of action. There was no exception to that charge. The jury found for the plaintiff.

Subsequent to the verdict, it was discovered that the original ordinance had been amended (Local Laws, 1953, No. 1 of City of Cohoes; Local Laws, 1960, No. 1 of City of Cohoes) so that, by the time of the accident, prior Written notice of the defect was required. Unless written, actual notice, no matter how explicit and even if conceded, did not suffice. Defendant then moved to set aside the verdict upon the grounds that written notice had not been, and could not, be proved. The motion was denied.

On the city's appeal, the Appellate Division, by a divided court, reversed on the law and dismissed the complaint. The majority was of the view that CPLR 4511 (subd. (a)), our 'judicial notice' statute, mandated a reversal despite the city's acquiescence to the trial of the case on the actual notice theory.

Plaintiff, on her appeal here, urges that, in the absence of an objection or request to charge, the requirement of actual notice rather than written notice became the 'law of the case', 'binding' upon the parties even though it was an erroneous statement of local law. We agree that the order should be reversed, but on a different theory.

The doctrine of the 'law of the case' is a rule of practice, an articulation of sound policy that, when an issue is once judicially determined, that should be the end of the matter as far as Judges and courts of co-ordinate jurisdiction are concerned (United States v United States Smelting Co., 339 U.S. 186, 198, 70 S.Ct. 537, 94 L.Ed. 750; Insurance Group v. Denver & R.G.W.R. Co., 329 U.S. 607, 612, 67 S.Ct. 583, 91 L.Ed. 547; Messinger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 56 L.Ed. 1152; Telaro v. Telaro, 25 N.Y.2d 433, 437--438, 306 N.Y.S.2d 920, 922--923, 255 N.E.2d 158, 159--160; Note, Successive Appeals and the Law of the Case, 62 Harv.L.Rev. 286). Of course, it has no such 'binding' force on appeal since the appellate court is not a co-ordinate, but a higher tribunal (Rager v. McCloskey, 305 N.Y. 75, 78, 111 N.E.2d 214, 216).

It, therefore, has at times been a source of confusion when 'law of the case' terminology has been used in discussing nonreviewability of a point because an aggrieved party has failed to except to an adverse determination below. (E.g., Brown v. Du Frey, 1 N.Y.2d 190, 195--196, 151 N.Y.S.2d 649, 653--654, 134 N.E.2d 469, 471--472; Buckin v. Long Is. R.R. Co., 286 N.Y. 146, 36 N.E.2d 88.) In such cases the term is a misnomer. (7 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 5501.11, p. 55--24). Indeed, even when no objection has been taken, our Appellate Division may correct errors in the exercise of their power to act 'in the interests of justice' (see 4 Weinstein-Korn-Miller, N.Y.Civ.Prac., pars. 4017.05, 4017.09; Misler v. Hilton Int. Co., 39 A.D.2d 946, 333 N.Y.S.2d 119; Alexander v. State of New York, 36 A.D.2d 777, 319 N.Y.S.2d 219; Rivera v. W. & R. Serv. Sta., 34 A.D.2d 115, 309 N.Y.S.2d 274), and the 'law of the case' could hardly have less to do with it.

However, as here happened, parties to a civil litigation, in the absence of a strong countervailing public policy, may consent, formally or by their conduct, to the law to be applied see, E.g., Brady v. Nally,151 N.Y. 258, 264, 45 N.E. 547, 549; Martin v. Pettit, 117 N.Y. 118, 122, 22 N.E. 566, 567; Matter of New York, Lackawanna & Western R.R. Co.,98 N.Y. 447, 452--453; Reilly v. Insurance Co. of North Amer., 32 A.D.2d 918, 302 N.Y.S.2d 435; Cf. General Obligations Law, § 17--103, Consol.Laws, c. 24--A (agreements to waive the Statute...