Leach v. Town of Eastchester

265 A.D. 859, 37 N.Y.S.2d 1020, 1942 N.Y. App. Div. LEXIS 6203

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 2, 1942
• Status: Published

Opinion

Lazansky, P. J., Taylor and Close, JJ., concur; Adel, J., concurs, with the following memorandum: I concur for affirmance on the sole ground that the law of the case was fixed by the decision of this court when the ease was here on appeal from the first trial (263 App. Div. 898). I adhere, however, to my opinion as evidenced by my dissenting vote then recorded; Johnston, J., dissents and votes to reverse the judgment and to dismiss the complaint on the ground that the physical facts, as shown by the photographs and the dimensions testified to by the witnesses for both plaintiff and defendant, establish that the condition was not in the nature of a trap.