Wachtel v. Rosen

This was a motion to dismiss the complaint for insufficiency under rule 106 of the Rules of Civil Practice in an action by the holder of a check against the drawer because of failure to allege that the holder had presented the check for payment at the bank upon which it was drawn. In place of such an allegation the plaintiff alleged that the check had been presented for certification, which the bank had refused, and, therefore, the payee sought to hold the drawer of the check. The learned court at Special Term granted the motion to dismiss the complaint and the plaintiff appeals. A majority…