The court at Special Term has granted the defendant's motion to dismiss the complaint on the ground the Statute of Limitations has run upon the cause of action pleaded so far as that cause could be ascertained from the complaint and papers before the court. It allowed plaintiff to plead over. In the course of expressing the reasons for the exercise of the discretion to allow a new pleading the court examined the possibilities for a cause of action against which limitations had not run. Defendant, although it succeeded on the motion to dismiss, appeals from the allowance of a right to replead. It argues that the recognition of the possibility of a cause of action explored in the opinion might be considered the "law of the case". The fear is groundless. The court was merely stating the rationale which led it to exercise a discretion and was not expressing any definitive judgment on an actual state of facts or pleading. No such pleading is presently in existence and such a discussion is certainly not "the law of the case". It will be time enough to evaluate the new pleading permitted if and when it is before the court. We regard the discretion to allow a further pleading to have been properly exercised. The point made by plaintiff's brief that "defendant's motion should have been denied" is without force in this court because plaintiff did not appeal. Order unanimously affirmed, with $10 costs and disbursements.