Franklin National Bank v. Ives ( 1967 )

Resettled judgment of the Supreme Court, Nassau County, dated March 23, 1965, reversed, with $10 costs and disbursements, and plaintiff’s motion for summary judgment denied. In our opinion, there are triable fact issues, barring summary judgment, as to (a) whether there was a secret preference given to plaintiff’s assignor and (b) whether the preference, secret or not, was obtained by duress. If there was such secret preference, it would be void and inoperative (Solinger v. Earle, 82 N. Y. 393; White v. Kuntz, 107 N. Y. 518; Hanover Nat. Bank v. Blake, 142 N. Y. 404). If the preference was not secret, but was obtained by duress, it would be voidable (Port Chester Elec. Constr. Corp. v. Hastings Terraces, 284 App. Div. 966; see, also, J. M. Deutsch, Inc. v. Robert Paper Co., 13 A D 2d 768); and the further question would then arise as to whether defendants had ratified it by their subsequent conduct. Brennan, Acting P. J.) Rabin, Hopkins, Benjamin and Munder, JJ., concur.