Opinion
January 28, 1974
In a negligence and nuisance action to recover damages for personal injuries sustained by plaintiff's intestate, plaintiff appeals from a judgment of the Supreme Court, Kings County, entered July 26, 1972, in favor of defendants, upon the trial court's dismissal of the complaint at a jury trial. Judgment reversed, on the law, and new trial granted, with costs to abide the event. The appeal did not raise questions of fact. The trial was the second jury trial of this case. At this second trial plaintiff presented the identical evidence that had been placed in the record at the first trial. At the end of plaintiff's case in the first trial, the court granted a motion to dismiss the complaint. On appeal, this court reversed and granted the new trial on the ground that plaintiff had made out a prima facie case ( Goldenberg v. City of New York, 39 A.D.2d 571). A trial court to which an action has been remitted by an appellate court for a new trial has no jurisdiction to review matters decided by the appellate court ( Hornstein v. Podwitz, 229 App. Div. 167, affd. 254 N.Y. 443). Gulotta, P.J., Martuscello, Latham, Benjamin and Munder, JJ., concur.