Opinion
July, 1934.
Judgment modified by striking therefrom the third decretal paragraph thereof with respect to the contract bearing date October 28, 1933, and as so modified unanimously affirmed, with costs to respondents. The proof does not warrant the findings (1) that the agreement of October 16, 1933, was extorted from defendant by duress and coercion by threatening the ruin of defendant's business; (2) that the agreement is harsh, unfair, unconscionable and impossible of performance and ruinous to defendant's business. It appears that plaintiff, in order to procure the signing of the agreement by defendant, caused a strike of defendant's seven drivers, four of whom, at least, had definite term contracts, a breach of which could not be adequately compensated for by damages. In addition, plaintiff threatened that if the agreement was not signed by defendant its business would be "cleaned out." The threat was made under circumstances which indicate it meant that not only would defendant's employees, members of the union, continue the strike but would disclose the names of defendant's customers to rival concerns, in violation of the contracts between defendant and its employees. Under such circumstances equity should not aid the plaintiff. There is no warrant for an approval of the new contract between defendant and its employees. Findings of fact and conclusions of law inconsistent herewith are reversed and new findings will be made in accordance herewith. Lazansky, P.J., Young, Kapper and Tompkins, JJ., concur; Carswell, J., concurs in result. Settle order on notice.