Levine v. Levy 285 A.D. 848

Order insofar as appealed from modified in accordance with the memorandum and, as modified, affirmed, without costs of this appeal to either party. Memorandum : Defendant admits all the allegations of paragraph 7 of the complaint, except that he denies that he ever promised to pay plaintiff an extra $30,000 if he should purchase a further interest from Christine Cromwell Hoffman. Such denial, in our judgment, is sham. There is no question that defendant made the promise, although claimed to have been made under duress. It was not void, but voidable (5 Williston on Contracts [Rev. ed.], § 1624). The denials contained in paragraph 2 of the amended answer should, therefore, be stricken out. The defenses contained in the amended answer being sufficient in law upon their face, and issues of fact being present, plaintiff’s other motions were properly denied. The order appealed from should, therefore, be modified by striking out the denials contained in paragraph 2 of the amended answer, and, as modified, affirmed. All concur. (Appeal from part of an order denying a motion to strike out defenses in answer.) Present — McCurn, P. J., Vaughan, Kimball, Wheeler and Van Duser, JJ. [See post, p. 1011.]