(dissenting). The decision in Endurance Holding Corp. v. Kramer Surgical Stores, Inc. (227 App. Div. 582), which follows the long-established law of this State, has not been overruled.
If one Supreme Court justice dismisses a complaint on the ground that it does not state facts sufficient to constitute a cause of action *254and no appeal is taken, the law on that issue is settled by the decision. The same plaintiff may not thereafter institute a new action by the service of a complaint identical in all respects with the complaint which had been dismissed and again test out the sufficiency of the allegations before another Supreme Court justice.
In the case now under consideration the second Supreme Court justice, in effect, overruled the first and thus assumed the function of an appellate court. Such a course, if allowed, would bring about most unjust results. A matter decided by one justice of the Supreme Court may not thereafter be brought before another justice of that court in the hope that a more favorable result will be obtained should the second justice decide the matter differently from the first.
A party to a proceeding, not satisfied with the decision, has the right to appeal to the appellate court duly constituted to hear such appeals. Any other course would bring about a chaotic condition. This case is not governed by the procedure in the Court of Appeals. That court, having the right to review any question of law that comes before it, is not bound by the decisions of any other court in this State.
The order appealed from should be modified to the extent of dismissing both causes of action as against the individual defendants-appellants, and, as so modified, affirmed.
Order reversed, with twenty dollars costs and disbursements, and the motion granted with leave to the plaintiff to plead over within twenty days after service of a copy of the order with notice of entry thereof, on payment of said costs.