Peikin Fifth Ave. Inc. v. Cumming

Henry Epstein, J.

Defendant, Ulmont 0. Gumming, moves for dismissal for insufficiency of the “ Second “ Fourth ” and Sixth ’ ’ causes of action which seek to recover the balance remaining due upon checks. The remaining causes are asserted against the codefendant, his wife. The checks were given to the plaintiff by the wife in payment of the purchase price of merchandise sold by the plaintiff to her. Defendant urges the causes are insufficient because no sale is alleged to him nor the manner in which plaintiff became the owner and holder, the identity of the payee, the devolution of the checks or how plaintiff is connected with them. The complaint sets forth {“ Second ” cause of action) that the checks in -suit were made by the moving defendant, one of them was deposited by the plaintiff and paid and defendant made a part payment on 'another, that a further check (“ Fourth ” cause) made by the moving defendant was delivered to the plaintiff by the codefendant and was dishonored because of insufficient funds and that two further checks (“ Sixth ” cause) were made by the moving defendant and delivered to the plaintiff by the codefendant and upon which payment was stopped. In each cause it is alleged that the plaintiff is the owner and holder of the checks. In an action against the maker, it is sufficient to allege that the plaintiff is the owner and holder of the checks in suit.

The motion is denied.