Terry v. . Wait

We think that the judgment of the Commission of Appeals on the former argument of this case *Page 93 concludes the parties,* upon the point sought to be raised upon this appeal. The commission decided that the plaintiff could not recover against William Wait without proof of the alleged fraud in the transfer of the note by David W. Wait to Joseph R. Wait, and by him to the defendant Martin; and further, that the judgment which had been entered against Martin by default, on publication of the summons, did not establish those allegations as against the defendant William Wait. In pursuance of this decision and the order thereon, the parties went down to a new trial, and no attempt was made on such new trial to supply the defect of proof which the commission had decided to be fatal to the plaintiff's case. 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. If any circumstances could be suggested which would justify the exercise of such a power, they do not appear in the present case. The judgment should be affirmed. All concur, except GROVER, J., not voting. Judgment affirmed. * 48 N.Y., 637.