(dissenting). In the light of the provisions of section 213 of the Civil Practice Act, under paragraph twelfth of the complaint plaintiff may prove that the drawer of the cheek owed the money to the payee, was actually credited with payment, accepted such credit and, accordingly, ratified and was unjustly enriched.
I dissent and vote to reverse and deny the motion to dismiss.
Martin, P. J., Glennon, Callahan and Yan Yoorhis, JJ., concur in Per Curiam opinion; Dore, J., dissents in opinion.
Judgment and order affirmed, with costs.