Clasen v. Doherty — 242 A.D. 502

Majority

p. 502

Charles E. Clasen, Respondent, v. Henry L. Doherty, Doing Business under the Firm Name and Style of Henry L. Doherty & Co., and Another, Appellants.

First Department,

December 7, 1934.

Joseph M. Sullivan of counsel [Frueauff, Robinson & Sloan, attorneys], for the appellant.

Robert Seelav, for the respondent.

In alleging the second cause of action, plaintiff has failed to comply with rule 92 of the Rules of Civil Practice. The third cause of action is totally insufficient. The rule is well settled that a so-called threat, as outlined in his complaint, to breach a contract does not constitute duress.

The order appealed from should be modified by granting the motion as to the second and third causes of action, with leave to the plaintiff to serve an amended complaint as to the first and second causes of action upon payment of costs to date, and as so modified affirmed, wdth twenty dollars costs and disbursements of tips appeal to the appellants.

Present — Finch, P. J., Merrell, Townley, Glennon and Untermyer, JJ.; Merrell, J., dissents and votes to affirm.

Order modified by granting motion as to the second and third causes of action, with leave to the plaintiff to serve an amended complaint as to the first and second causes of action upon payment of costs to date, and as so modified affirmed, with twenty dollars costs and disbursements of appeal to the appellants.