(dissenting). Although what is said in the opinion of the court with respect to plaintiff’s motive in changing his theory of action on the facts may well be true, the dismissal of a previous complaint can hardly be a bar to the present complaint which alleges a materially different state of facts. For the purposes of the pleadings it seems to me that we must accept the truth of the facts as stated in the third amended complaint. I, therefore, dissent and vote to affirm.
Glennon, Callahan and Shientag; JJ., concur with Peck, P. J.; Van Voorhis, J., dissents, in opinion.
Order reversed, with $20 costs and disbursements to appellant and judgment is directed to be entered dismissing the complaint herein, with costs. Settle order on notice.