| N.Y. App. Div. | Jun 15, 1935
Appeal from order of Appellate Term unanimously reversing the judgment of the Municipal Court of the City of New York, Borough of Brooklyn, in favor of plaintiff in an action for money had and received by defendant on account of subscriptions to stock. Order of reversal of Appellate Term unanimously affirmed, without costs. We are of opinion that the sections of the Labor Law which appellant invokes (§§ 195-197, inclusive) are without application. While it may be held that the defendant’s conduct in procuring these subscriptions and payments constituted duress in that plaintiff subscribed under a threat to discharge him if he did not subscribe, and was moreover tinged with fraud in the implication that if he did so he would be permitted to continue the employment indefinitely, especially in view of the fact that the amounts contracted to be paid appear to be grossly in excess of the market value of the stock, nevertheless, the contract, although made at the instance of the defendant, was not with it and the sellers were not joined as parties defendant. The duress, therefore, cannot result in avoidance of the contract, and there was, moreover, no showing of damage, assuming the action to have been based on tort. The affirmance is without prejudice to the right of the appellant to commence a new and proper action if so advised. Lazansky, P. J., Hagarty, Scudder and Tompkins, JJ., concur; Carswell, J., votes to affirm on the merits.