MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs. We agree that the Appellate Division was not bound by its earlier determination, as the law of the case, because of the additional and persuasive evidence on the second trial. On the merits we find that the defendant was entitled to a directed verdict for the reasons stated in the Per Curiam opinion at the Appellate Division ( 58 A.D.2d 320; see, also, Process Plants Corp. v Beneficial Nat. Life Ins. Co., 42 N.Y.2d 928, affg 53 A.D.2d 214).
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur.
Order affirmed, with costs, in a memorandum.