Opinion
October 30, 1936.
Order granting motion for leave to serve an amended complaint reversed on the law, with ten dollars costs and disbursements, and motion denied. The order made by Wenzel, J., in a prior action between the same parties, dismissing the complaint upon the ground that it did not state facts sufficient to constitute a cause of action, and the order denying a motion to resettle such order by granting leave to serve an amended complaint are a binding adjudication that the complaint herein does not state facts sufficient to constitute a cause of action, inasmuch as the complaint herein is the same, as far as the questions involved are concerned, as the one in the action in which the complaint was dismissed by Wenzel, J. ( Joannes Brothers Co. v. Lamborn, 237 N.Y. 207.) Lazansky, P.J., Young, Hagarty, Adel and Taylor, JJ., concur. [See ante, p. 912.]