121 Misc. 96 | City of New York Municipal Court | 1923
Plaintiff sues to recover the sum of $121.10 alleged to have been wrongfully exacted by defendant. Defendant, a transportation corporation, denies plaintiff’s right to a return of the money, contending that it demanded and received it in payment of a just claim; that it was a voluntary payment. As authority for his right to recover plaintiff invokes the rule that “ when a party is compelled by duress of his person or goods to pajr money for which he is not liable it is not voluntary but compulsory and may be recovered.” Harmony v. Bingham, 12 N. Y. 99, 116. Defendant contends the situation presented must be governed by the rule “ that money voluntarily paid to one authorized to receive under a claim of right to the payment, with knowledge of the existing facts cannot be recovered back.” New York & Harlem R. Co. v. Marsh, 12 N. Y. 308; Flower v. Lance, 59 id. 603; Payne v. Witherbee, Sherman & Co., 200 id. 572. The testimony shows that on October 14,1921, plaintiff applied to the defendant to be supplied with electric current in his place of business known as the Brooklyn Bargain Store at 617 Grand street, Brooklyn. He had purchased the business, stock, fixtures and good will a few days before from one I. Cohn who had been a customer of defendant and indebted to it for current supplied in the sum of $120.10. After paying the customary deposit he was supplied with current for about ten days, when it was shut off. He inquired at defendant’s office for the cause, and was informed of the indebtedness by the former owner and advised to pay it under protest, and the supply of current would be restored. After consulting his lawyer he made the payment under protest and received a receipted bill made out to I. Cohn. Plaintiff contends that in demanding and compelling the payment as a condition of getting the service restored, the money was exacted under duress, against the exercise of his free will, especially because he paid under protest and acted in protection of his property and business necessities. As already stated, defendant contends that the payment was voluntary; made with knowledge of the existing facts; that its demand was based on a just claim for which plaintiff was answerable. It will be observed at the outset that although
Judgment accordingly.