Zinser v. Matthews Development Corp.

280 A.D. 827, 114 N.Y.S.2d 18, 1952 N.Y. App. Div. LEXIS 3832

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 23, 1952
• Status: Published

Opinion

In- an action for a declaratory judgment and to recover a sum of money paid under duress, judgment of the County Court, Suffolk County, for defendant in accordance with the granting of a motion to dismiss at the close of plaintiffs’ ease reversed on the law and a new trial ordered, with costs to plaintiffs to abide the event. The proof is sufficient to show prima facie that the defendant willfully refused to complete the house in a reasonable time unless it obtained more money than that to which it was entitled under its contract, and that the plaintiffs were compelled to execute a release of the original contract and to make a new contract calling for more money in order to obtain the house. The plaintiffs had given the. landlord notice of their leaving, and he was demanding their rented apartment. Under the circumstances an issue of fact was presented as to duress. (Harmony y. Bingham, 12 N. Y. 99; Seholey v. Mumford, 60 N. Y. 498; McPherson v. Cox, 86 N. Y. 472.) Carswell, Acting P. J., Adel, Wenzel, MaeCrate and Schmidt, JJ., concur.