McDougall v. Skeados

240 A.D. 997

Opinion

Judgment affirmed, with costs. Young, Hagarty and Tompkins, JJ., concur; Lazansky, P. J., votes for affirmance upon the ground that the facts show that the defendant had maintained a nuisance as a matter of law; Davis, J.: I concur for affirmance on the ground stated by the presiding justice, and on the further ground that the defendant is bound by the law of the case. There is no supervisory power in this court over verdicts to give another opportunity to a defeated litigant to try his case on a new theory if he has been unsuccessful on the theory adopted and acquiesced in on the trial. Here the defendant accepted the doctrine charged by the court as to the cellar doors being a nuisance as a matter of law, without exception or request to charge a different rule. He is bound by the instruction given, whether it be erroneous or not. (Saulsbury v. Braun, 223 App. Div. 555; affd., 249 N. Y. 618.)