Stokes v. County of Suffolk

63 A.D.2d 645, 404 N.Y.S.2d 378, 1978 N.Y. App. Div. LEXIS 11513

Opinion

In an action, inter alia, to recover a sum of money representing the difference in the salary received by plaintiff under an erroneous classification and the salary he should have received, defendant appeals, on the ground of excessiveness, from a judgment of the Supreme Court, Suffolk County, dated August 22, 1977, and made after an inquest held pursuant to a prior order of this court (Stokes v County of Suffolk, 55 AD2d 949). Judgment affirmed, with costs. A prior judgment in this action was signed on January 27, 1976. That judgment was partly in favor of the plaintiff and partly in favor of the defendant. The plaintiff appealed from the portion of the judgment which was in favor of the defendant and against him; the defendant did not appeal. We reversed the judgment insofar as it was appealed from, on the law, and remitted the action to Trial Term for an inquest. The defendant now appeals, on the ground of excessiveness, from the judgment entered after the inquest. The only issue raised by the defendant is an issue which could have been presented on the appeal from the original judgment. That issue was referred to in the defendant’s brief on the prior appeal. Under these circumstances, consideration of that issue on the merits is precluded by the doctrine of law of the case. Hopkins, J. P., Martuscello and O’Connor, JJ., concur; Shapiro, J., concurs in the result on constraint of the holding in Stokes v County of Suffolk, (55 AD2d 949).