Opinion
February 21, 1967
Order entered April 27, 1966 dismissing the second cause of action alleged in the plaintiff's second amended complaint, unanimously reversed, on the law, with $50 costs and disbursements to plaintiff-appellant, and the motion therefor denied. Fairly read, a majority of the court hold that the amended pleading alleges that the corporate defendants are instrumentalities of the same enterprise; that plaintiff rendered services to the enterprise and it is the purpose of the defendant E.A. Peppercorn, Ltd., to avoid payment of plaintiff's compensation therefor. ( Walkovszky v. Carlton, 18 N.Y.2d 414. ) Some of us feel that the prior approval of the amended complaint by the Justice who granted leave to serve it is an adjudication of the sufficiency thereof and the law of the case. (See, however, Donato v. American Locomotive Co., 283 App. Div. 410, 413, affd. 306 N.Y. 966.)
Concur — Steuer, J.P., Capozzoli, Rabin and McNally, JJ.