(dissenting). Treating the complaint as one for breach of contract rather than duress, it is clear that the only contract dated May'3, 1935, in which the parties to this appeal joined as contracting parties, was plaintiff’s Exhibit “ A ”.
Even if we assume that it alleges a breach of that contract to plaintiff’s damage, and that the facts which plaintiff pleads support a claim in his individual right rather than the' right of the corporation of which the parties were stockholders, the complaint is nevertheless insufficient because it fails to allege facts constituting performance or due performance by plaintiff of Exhibit " A ”.
The order should be affirmed, with leave to plaintiff to serve an amended complaint.
*1028Martin, P. J., Townley, Dore and Cohn, JJ., concur in Per Curiam opinion; Callahan, J., dissents in opinion.
Judgment and order reversed, with costs, and the motion denied, with leave to the defendant-respondent to answer within t.en days after service of order with notice of entry, on payment of said costs. [See 270 App. Div. 760.]