232 A.D. 471 | N.Y. App. Div. | 1931
A trustee in bankruptcy sues on two counts: First, to recover money paid under duress, and, second, to recover a preferential payment.
The first cause of action is insufficiently pleaded in at least three respects: (1) While apparently a series of payments under duress is pleaded, only one threat is alleged. Payments under duress imply some present threat or fear and allegations should be made accordingly. (Dunham v. Griswold, 100 N. Y. 224.) (2) There is nothing to show that in any case the charge was not true and that the money was not due. (Union Exchange Nat. Bank v. Joseph, 231 N. Y. 250; McPherson v. Cox, 86 id. 478.) (3) The description of the threats is conclusory in character. No facts are set out to support this conclusion. (Civ. Prac. Act, § 241.)
The second cause of action as pleaded is sufficient.
The order should be modified by granting the motion to dismiss the first cause of action, and as modified affirmed, with ten dollars costs and disbursements to the appellant, with leave to serve an amended complaint on payment of said costs.
Present — Finch, P. J., Merrell, O’Malley, Sherman and Townley, JJ.
Order modified by granting motion to dismiss the first cause of action and as modified affirmed, with ten dollars costs and disbursements- to' the appellant, with leave to the plaintiff to serve an amended complaint within twenty days from service of order upon payment of said costs.
