59 F.Supp. 271 (S.D.N.Y. 1944), Griffith v. Bank of New York

Citation:59 F.Supp. 271
Case Date:April 29, 1944
Court:United States District Courts, 2nd Circuit, Southern District of New York

Page 271

59 F.Supp. 271 (S.D.N.Y. 1944)




United States District Court, S.D. New York

April 29, 1944

Adhered to on Rehearing May 20, 1944.

Josephine E. Kestler, of New York City, for plaintiff.

Emmet, Marvin & Martin, of New York City, for defendant.

CAFFEY, District Judge.

The defendant moves to dismiss the complaint. The plaintiff was the co-beneficiary and co-remainderman of a testamentary trust of which the defendant was the trustee.

The complaint seeks a money recovery from the trustee for breach of trust duties. There had been a judgment in the Supreme Court, New York County, settling the account of the trustee and releasing it from further liability. This was entered pursuant to a stipulation between the beneficiaries and the defendant (complaint, paragraphs 4, 5 and 6). The settlement agreement has been carried out (complaint, paragraph 8.) It is further alleged that the settlement agreement and the consent to the entry of judgment were obtained by duress (complaint, paragraph 12) and that the plaintiff has been damaged because of the duress imposed upon her by the defendant

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(complaint, paragraph 13).

The defendant has raised the question of the propriety of electing to affirm a contract entered into under duress and then suing to recover damages because of the duress; but determination of that issue does not seem to me necessary.

Before the present action (hereinafter called the second action) was commenced in this court, as appears by the complaint herein there had been adjudication of an action in the Supreme Court of New York, New York County, between the parties hereto (hereinafter called the first action). In the first action the judgment settled the account between those parties, which is the same account that is mentioned in the complaint herein. The State court had jurisdiction of the parties and of the subject matter involved in the first action. Whether the judgment in the first action was correct or incorrect is not for this court to decide. So long as it stands unreversed or is not set aside, that judgment is conclusive on the parties. Crouse v. McVickar, 207 N.Y. 213, 217-219, 100 N.E. 697, 45 L.R.A.,N.S., 1159

Under her theory of ratifying the settlement agreement and thereby ratifying the judgment, the plaintiff does not attack the judgment directly. Nevertheless, in the second...

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