J. R. Construction Corp. v. Berkeley Apts., Inc.

Action to recover for work performed under a masonry contract. Order striking out the defendant’s answer and granting plaintiff’s motion for partial summary judgment and the judgment entered thereon, reversed on the law and the facts, *967with ten dollars costs and disbursements, and the motion denied, -without costs. This court’s prior decision (259 App. Div. 830) did not hold that the defense of duress was insufficient as a matter of law, but that the evidence at the trial on that issue was insufficient to submit the issue to the jury. The jury may have reached its verdict on that issue alone when the evidence was insufficient to establish it. The defense of duress is still available, but if the evidence is not materially different from that given at the first trial, the issue should not be submitted to the jury. There are, in any event, other issues raised by the answer which must be tried.. The counterclaim was dismissed by the former judgment, from which portion thereof no appeal was taken, and the counterclaim is out of the case. Lazansky, P. J., Hagarty, Adel, Taylor and Close, JJ., concur.