| N.Y. App. Div. | Jul 1, 1898
Lead Opinion
The defendant has in its treasury §403, which it received from the plaintiff’s assignor, Walker. To this sum, it is conceded, it has not a shadow of right. It received the money for a permit to Walker to do what the law authorized him to do. (Buek v. Collis, 17 A.D. 465" court="N.Y. App. Div." date_filed="1897-07-01" href="https://app.midpage.ai/document/buek-v-collis-5182397?utm_source=webapp" opinion_id="5182397">17 App. Div. 465.) Shall it be compelled to restore the money which it thus unjustly and unconscionably retains ? That is the sole question here, and its solution depends upon whether Walker’s payment of the money was voluntary or compulsory. The facts are these:
In May, 189Y, Walker was building an apartment house in this city. He had excavated the area space in front and on two sides of the building, and had let out a contract to cover this area space with vault lights. While this-work was being done, one Cosine, an inspector in the department of highways, visited the premises, and told the foreman who was in charge that if he did not obtain a permit to construct the vault in question he would notify the police and have him arrested. This inspector ordered the foreman to stop the work, and the latter accordingly did so. The general method of enforcing such an order wuis, as the inspector testified, as follows: “ I will tell you how I do it; I notify them to stop ; if they didn’t and I found that they have not got the necessary permit I go to the nearest telephone and call up police headquarters, and the captain of the precinct stations a man there -until they get the necessary permit there.” He added, “ My duties were to notify the party to stop work, and if he didn’t stop I would have him arrested; I generally go to the telephone and call up headquarters, and they notify the police, and if I can’t find a policeman on the beat, I go on until I can find one on post, and I will notify him; they watch it, and I come along twice a day, or three times a -week, or ten times a week.” And again this witness emphasized what transpired, “ I notified the foreman to stop putting those patent lights in until he went down town and procured the necessary permit, and he then stopped ; 1 notified him I would have him arrested ¡ they all lenow me / they lenow what the result will be when they see me jump off
One McManus, a clerk in the department of highways, testified that liis instructions from both the commissioner and deputy commissioner of public works were that he “ must allow no vault to be built without payment and the issuance of the permit. * * * My instructions with reference to dealing with those persons who did not apply for permits for construction of vaults * * * was not allowed them to go on with the work.” Under these instructions, to again quote his testimony, he “ proceeded to stop them from going on with their work by sending am inspector to the work to notify the parties that they would be interfered with ; the. inspector was Mr. Cosine, and they were notified through him to stop work until they obtained the permit, and if they didmH stop what would take placed
The foreman notified Walker of the threats; and the latter could see for himself that the work was stopped. Thereupon Walker went down to the department of public works, paid the money and obtained the permit. He did so, he says, because he did not want to contend with the public authorities ; so that his men could work. “ If I hadn’t done it,” he testifies, “ the man could not have proceeded with the work. I went down and paid for this permit so as to prevent my man from being arrested amd im order to go on with the work without public imterference by the authorities.” He knew that the same course had been adopted with others; that the threat, to arrest his men and stop his work were part of a general system ; and he believed that he would be treated as others had been.
It is difficult to perceive here any element of a voluntary payment. It was plainly compulsory. There is no iron-clad rule which confines an involuntary payment to cases of duress of person or restraint of goods. Money compulsorily paid to prevent an injury to one’s property rights comes within the same principle. (Carew v. Rutherford, 106 Mass. 1" court="Mass." date_filed="1870-11-15" href="https://app.midpage.ai/document/carew-v-rutherford-6416286?utm_source=webapp" opinion_id="6416286">106 Mass. 1.) In this case, it was held that a conspiracy against a mechanic, who is under the necessity of employing workmen to carry on his business, to obtain a sum of money from him which he is under no legal liability to pay, by inducing his workmen to leave him, and by deterring others from entering his employment,
Is it not entirely clear, in the case at bar, that Walker was under a reasonable apprehension that he could not complete his apartment house without yielding to the defendant’s demand ? Was not the stoppage of work upon his building an injury to his property within the definition of subdivision 10 of section 3343 of the Code of Civil Procedure % The defendant’s threats were certainly threats of actionable acts_ whereby his estate would be lessened. Every day that was thus lost to him was a serious pecuniary injury. And yet we are told by the appellant that the payment was voluntary because Walker personally was not arrested or threatened with arrest, and because his tangible property was not actually seized or threatened with seizure. This contention proceeds upon an entire misapprehension of the true rule. His property, in a legal sense, was injured by the acts of the defendant’s servants. It was the threatened exercise of power which Walker believed they possessed that was likely to take money out of his pocket every day that it continued. Interest on his capital would be running, and increment from rents a would he postponed. The rule upon this branch of the case was stated with great clearness by Mr. Justice Field in Radich v. Hutchins (95 U.S. 210" court="SCOTUS" date_filed="1877-11-12" href="https://app.midpage.ai/document/radich-v-hutchins-89585?utm_source=webapp" opinion_id="89585">95 U. S. 210, 213), as follows: “ To constitute the coercion or duress which will be regarded as sufficient to make a payment involuntary * * * there must be some actual or threatened exercise of power possessed, or believed to be possessed, by the party exacting or receiving the payment over the person or property of another, from which the latter has no other means of immediate relief than by making the payment.” It is the “ moral coercion,” spoken of by Judge Brown in Adams v. Irving National Bank (116 N. Y. 611), which entitled the plaintiff to recover the money paid because of it. The narrowness of the strict common-law rule with regard to duress was said in that case to have O been “ much mitigated,” and money paid under practical compulsion allowed in many cases to be recovered. “ The very word used to describe an involuntary payment,” said Judge Peckham in Tripler
It is also contended that Walker had a legal remedy, and should have resorted to it. He might doubtless have essayed an action in equity to restrain the defendant, or he might have brought an action at law for his damages; or he might have directed his employees to defy the public authorities and take their chances with a habeas corpus. But while any one of these various remedies was taking its regular course, what was to become of his unfinished building ? He might have been ruined before even partial redress could thus be afforded him. As far back as Astley v. Reynolds (2 Strange, 915) a legal remedy was held to be no answer to an action like the present. “We think,” said the court, in that case, “* * * that this is a payment by compulsion. The plaintiff might have such an immediate want of his goods that an action of trover would not do his business. * * * We must take it he paid the money relying on his legal remedy to get it back again.” This case was cited with approval in Harmony v. Bingham (12 N. Y. 109), Judge Edwards saying that it was referred to with approbation by Lord Mansfield in the case of Smith v. Bromley (2 Doug. 695), and, he adds, “ I have not found any English case in which it has been doubted.” Judge Edwards also cited with approval Cartwright v. Rowley (2 Esp. 723), quoting the following observations from Lord Kenyon’s opinion there: “ I recollect a case of-v. Piggott, where this action was brought to recover back money paid to the steward of a manor for producing at a trial some deeds and court rolls, for which he had charged extravagantly. The objection was taken that the money had been paid voluntarily, and so could not be recovered back again, but it appearing that the party could not do without the deeds, so that the money was paid through necessity and the urgency
The threats in the case at bar were made by the defendant, and were to be executed by it. They related to the direct action of its own police force, to be summarily invoked by its other agents. Both of these agencies were part and parcel of the defendant’s general municipal rule. Walker was not bound to defy these potent agencies. He was but an individual. The entire machinery of corporate ■ government was against him. It was said by Judge Woodruff in T he American Exchange Fire Insurance Company v. Britton (8 Bosw. 153) that persons dealing with public officers and their deputies and agents do not stand with them upon equal ground. “ In such cases,” he continued, “ I concur with the views of Martin, B., in Steele v. Williams (20 Law & Eq. R. 319; 8 Exch. R. 625) that the payment is not voluntary.” The language of this eminent judge, preceding that which we have quoted, is pointedly applicable to the case at bar. There the defendants compelled the plaintiffs to pay them $300 upon the threat that unless it was paid they would telegraph to the Comptroller at Albany and stop their license to do business as an insurance company. The money was paid, and the plaintiffs sued to receive it back. The court held that they were entitled to recover it. Judge Woodruff answered the contention that the plaintiff might have had legal redress, and should, therefore, have refused to pay the money, with this reasoning, “Although the defendants had no legal power to interfere further, and although the plaintiffs would have had legal redress, and might probably have com
It but served to confuse the real issue to attempt to apply to the present facts the rule laid down in cases where it was sought to recover money paid under illegal assessments. The question is not as to money paid under mistake of fact or mistake of law. It is simply whether the defendant shall be compelled to restore money which it illegally coerced from the plaintiff’s assignor. There was no attempt to coerce Walker by legal proceedings. The threat which coerced him was a threat of brute force. The city took upon itself to become judge, jury and sheriff, and it was in that attitude that it made its demand.
The case of Wood v. The Mayor (25 A.D. 577" court="N.Y. App. Div." date_filed="1898-02-15" href="https://app.midpage.ai/document/wood-v-mayor-of-new-york-5183708?utm_source=webapp" opinion_id="5183708">25 App. Div. 577) is not in point. There the plaintiff asked for a permit to build certain vaults in space, for part of which a permit had already been obtained. He claimed that the deduction which the commissioner was willing to allow on account of the old permit was insufficient. Nevertheless, he paid the amount demanded, and got his permit. There was absolutely no coercion in fact, and Presiding Justice Van Brunt said, “ There is no evidence but that the plaintiff had the freedom of exercising his will. If his position was correct, he had no necessity for any new permit. * * * But as he wanted a new permit for the whole of the premises, and thought it was worth paying for, it is difficult to see how he can get the money back again.”
The fact that Walker went through the form of applying for a permit is quite immaterial. The substance of the matter is, that the defendant’s agents, acting within the scope of their authority, illegally demanded and received for the city $403, to which the latter was not entitled, as a condition of permitting Walker to com
The judgment should be affirmed, with costs.
Patterson and O’Brien, JJ., concurred; McLaughlin, J., dissented.
Dissenting Opinion
The action was brought to recover a sum of money from defendant upon the following complaint: “ The plaintiff complaining of the defendant shows to the court as follows, upon information and belief: First. That the defendant is a municipal corporation, duly organized and existing under the laws of the State of Hew York. Second. That on the 11th day of May, 1897, the defendant became indebted to one Alexander Walker, plaintiff’s assignor, as hereinafter shown, in the sum of four hundred and three 82-100 dollars, and received said sum of four hundred and three 82-100 dollars to the use of the said Alexander Walker, in manner following, to wit: The said Alexander Walker, on and prior to the 11th day of May, 1897, was the owner of an apartment house, with stores underneath, situate on the northwest corner of the Boulevard and Hinety-third street in the city of Hew York, said premises being intended for dwelling and business use, and was properly-denominated a tenement house, with stores underneath, as such property is defined in the act of the legislature of the State of Hew York, ‘Entitled Chapter 567 of the Laws of 1895,’ passed May , 1895. That on and prior to the said 11th day of May, 1897, one Charles H„ T. Collis was the duly authorized agent, officially
The rule is well settled by an unbroken line of decisions in this country and in England that money voluntarily paid, in satisfaction of an unjust and illegal demand, with full knowledge of the facts and circumstances under which it is demanded, and without fraud, duress or compulsion, cannot afterwards be recovered by the person paying the same. This principle is so well established and universally recognized that it is unnecessary to cite a single authority to sustain it. It is, however, contended that the judgment appealed from should be sustained for the reason that the payment for which a recovery has been had was not voluntary, but compulsory. After a careful consideration of the record before us, I am unable to reach that conclusion. The facts are undisputed. At and for some time prior to the time the payment referred to was made, the city of Hew York, acting under a supposed legal right, exacted from property owners a fee for permission to cover certain area about buildings constructed, by them with vault lights. In May, 1897, Alexander Walker, plaintiff’s assignor, was constructing a building, and in connection therewith desired to cover certain area space with vault lights, and for permission to do so voluntarily paid this fee. I say
Can a payment made under such circumstances be said to be compulsory ? It seems to me not. No fraud was practiced upon Walker. No threat was made to induce the payment. It may be assumed that what was said to the contractor, so far as the rights of the parties are concerned, was the same as though said to the owner of the building. All that it amounted to wras this : that an ordinance of the city relating to the construction of vault lights must be complied with or the city would institute legal proceedings to enforce the same, and the owner of the building, rather than contest the validity of the ordinance, made the payment. .It was, at most, an illegal demand made by the city in ignorance of the law, which was complied with by Walker either for the same reason, or else from a desire on his part to avoid litigation. Neither ignorance of the law nor a desire to avoid litigation enables a party to maintain an action to recover money paid. Walker, when he made the payment, was possessed of all the facts connected with or growing out of the demand by the city, and he then had an opportunity to determine the legality of the claim. He could have then had his day in court and demonstrated, had he so desired, that he was under no legal obligation to pay what the city asked, and that it had no right to execute the threat made. He could have applied for and obtained immediate relief by enjoining the city from interfering with the work which he was doing, and thus avoided any delay in the completion of his building. This is just what was done in the BueTc case above referred to. He preferred, however, if we accept his own statement, to make the payment rather than enter into a contest at that time with the city, and having done so, it must be held that he is estopped from claiming that the city had had no right to the money. This must be so unless we are prepared to hold that in every case in which money has been collected by a municipal corporation acting under an illegal ordinance or in violation of law, such money can thereafter be recovered by the party
It is, however, suggested that the defendant, because it received the money without a legal right, ought not to be permitted to retain it. But the court considers not the moral but the legal rights and obligations of parties. Parties, if they see fit to do so, can stand upon their legal rights, and the court can only perform its duty by enforcing such rights according to well-recognized principles of
For these reasons I think the judgment should be reversed.
Judgment affirmed, with costs.
Sic.
Sic.