Upon remittitur from the Court of Appeals, judgment, Supreme Court, New York County, rendered July 6,1977, upon a verdict convicting defendant of receiving unlawful gratuities, affirmed for the reasons stated in the dissenting opinion on appeal herein (65 AD2d 443, 451-454). This court reversed defendant’s conviction, and the Court of Appeals reversed and remitted the case for determination of the facts with respect to the suppression of defendant’s statements (49 NY2d 928). Based upon our determination of those facts, and for the reasons set forth in the original dissenting opinion, we affirm. Contrary to the view in the present dissent of Justice Lupiano, we find no procedural obstacle to this court’s review of the facts, de novo. It is clear that the admonition by the previous majority that it “would reverse and direct a new trial in view of the deprivation of a fair trial” (People v Palumbo, 65 AD2d 443, 449) is dictum, and thus not binding since it was not necessary to the decision. (See Matter of Buehler v Board of Supervisors of Rensselaer County, 260 NY 268; also 343 E. 77th St. Corp. v Bloom, 45 Misc 2d 545.) Inasmuch as the previous determination by this court was to reverse and dismiss the indictment, the observation tliat it would direct a new trial in any event because of trial errors *519was neither essential to, nor supportive of, its determination and was purely gratuitous. In addition, whether the doctrine “law of the case” applies when a matter is still on appeal and has not been remanded is an unanswered question since the general application of the doctrine has concerned “the effect of * * * statements of law on the lower court, and the effect of * * * rulings on the appellate court itself in a later appeal.” (Note, Successive Appeals and the Law of the Case, 62 Harv L Rev 286.) Even when a second appeal is before the bench which has made previous determinations, the doctrine is less than inflexible. “In the absence of statute the phrase, law of the case, as applied to the effect of previous orders on the later action of the court rendering them in the same case, merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit on their power.” (Messinger v Anderson, 225 US 436, 444.) In a case in which the Appellate Division chose, after dismissing defendant’s first appeal on the issue of liability for failure to prosecute, to entertain consideration of the same issue on the second appeal, the Court of Appeals observed that it could not say that the Appellate Division’s exercise of its “reserved power” in this instance was error as a matter of law and stated that "Every court retains a continuing jurisdiction generally to reconsider any prior intermediate determination it has made”. (Aridas v Caserta, 41 NY2d 1059, 1061; emphasis added.) Recently, in Matter of Catholic Med. Center of Brooklyn & Queens v Department of Health of State of N.Y. (48 NY2d 967), the Court of Appeals affirmed an Appellate Division decision which ran contrary to a previous decision in the same case. The dissenter (Meyer, J.) claimed that the Appellate Division violated the doctrine of law of the case, but the majority did not address the issue. “ ‘[L]aw of the case’ is a rule of practice, an articulation of sound policy that, when an issue is once judicially determined, that should be the end of the matter as far as Judges and courts of co-ordinate jurisdiction are concerned” (Martin v City of Cohoes, 37 NY2d 162, 165). Although it sits in panels, the Appellate Division is one court and its panels are not courts of co-ordinate jurisdiction. Nor are we limited on this remittitur to only a review of the custody issue. The Court of Appeals expressly stated that the issue of the misuse of the taped conversation of defendant was “beyond the scope of our review” (People v Palumbo, 49 NY2d 928, 929-930). Thus the issue comes back to whether the majority’s observation on the original appeal that it would direct a new trial in any event was a holding of this court or dicta. In Getty v Roger Williams Silver Co. (181 App Div 413), upon which one of the dissenters relies on the custody issue, the court, after receiving the remittitur from the Court of Appeals, justified its determination to remand, rather than to affirm, in part on the fact that it had not changed its mind since its previous decision. By its language the court implied that if, indeed, it had changed its mind, it would not have felt constrained by its initial determination. The Bench which decided the original appeal here and the Bench which has received the remittitur from the Court of Appeals are not, as already noted, courts of co-ordinate jurisdiction but constitute the same Bench, although one of the original Judges is no longer a member of this court. Under our constitutional system the new members of the panel are not the mere proxies of the original majority. Concur—Sullivan, J. P., Ross and Carro, JJ.; Markewich and Lupiano, JJ., dissent in separate memoranda as follows: