This action is based upon an agreement dated January 22, 1959 by the defendant to purchase outstanding capital stock of a corporation owned by the plaintiffs. The agreed price was $40,000, $10,000 payable on closing and the balance of $30,000 was to be paid monthly beginning February 23, 1959 and ending July 23, 1959. The agreement provided that the sellers should turn over to an escrow agent corporate books, indorsed stock certificates and their resignations as officers and directors of the corporation. After $20,000 had been paid under the agreement the documents were to be turned over by the escrowee to the defendant. Thirty-three thousand dollars was paid. However, a $5,000 check which was the payment due July 23, 1959 was returned marked insufficient funds, and the defendant also stopped payment on two other checks for $1,000 each. The action was commenced on September 22,1959 for the balance of $7,000.
As late as a month before the action was started the defendant acknowledged in writing his obligation under the afore-mentioned agreement. Nor does he deny that he made repeated oral representations to the plaintiffs that he was having financial difficulties and the final payments would soon be forthcoming. Accordingly, any of the undocumented allegations of fraud or duress are of post litem vintage and fail to raise triable issues of fact. Moreover, the alleged dispute as to the escrow agreement in my view was an afterthought by the defendant to further delay payments past due. It was not until after defendant’s admission of financial difficulties, and default in payment, that he raised any question as to the terms of the escrow agreement. Furthermore, it appears that he has now in his possession the documents and papers necessary to conduct the corporate affairs. Accordingly, there are no triable issues of fact and the order and judgment should be affirmed.
Breitel, J. P., McNally and Steuer, JJ., concur in Per Curiam opinion; Stevens, J., dissents in opinion in which Valente, J., concurs.
Order granting summary judgment reversed on the law, without costs, the judgment thereon vacated and the cross motion for summary judgment denied. Settle order on notice.