Opinion
February 20, 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.