65 Barb. 346 | N.Y. Sup. Ct. | 1873
In January, 1868, the plaintiff, while a partner with Edward J. Owen, loaned to him some certificates of stock in the jEtna Insurance Company, which Owen sold, without the knowledge of the plaintiff, and applied the proceeds to his own use. The plaintiff endeavored to collect the money, without avail. Owen resided in Elizabeth, Yew Jersey. In April, 1869, as Owen, with his wife, who was then in a delicate situation, was returning from the funeral of his father, he was arrested at the ferry in Yew York, by a deputy sheriff, accompanied by the plaintiff, upon an order of arrest which had been granted on the plaintiff’s application.
After a few minutes, the plaintiff himself signed the bail bond to the sheriff, and consented to let Owen go, upon the promise of- his wife that she would have him at the plaintiff’s office, the next day. The next day, April 23, 1869, the wife, her husband-and her mother, came to Yew York, and the two women went into the plaintiff’s office, where he was present, while Owen remained outside. The defendant testified: “My daughter was in a very delicate situation, and very much overcome with grief, and I went, as any mother would do, to rescue her daughter.” “I went for company with my daughter, for she was not fit to go to the office alone.”
“ Q. Did Mr. IngersoE tell you if you did not endorse this note, he would send your son-in-law to State’s prison?” “A. Tes; he told my daughter so too; he used that language; he said he was very sorry to have this trouble with Mr. Owen, but he must be secured, else he would go to the extent of the law, and send him to State’s prison.”
The plaintiff denies that he said anything about the State’s prison; but a letter from him to the defendant, written after the protest of the note, contains this language : ‘ ‘ Mr Owen is stiE liable to arrest, and if I choose I can put him in Ludlow street jaE, by a civil proceeding, untE the debt is paid; or I can proceed against him criminaEy, and send him to Sing Sing prison as a convict, and render his name infamous forever.”
One of the defences set up in her answer, by the defendant, was “that her endorsement of the said note was extorted from her by fraudulent representations, and among others that Edward J. Owen, the defendant’s son-in-law, had committed an offence that rendered him liable to imprisonment in State prison, and the threat by the plaintiff that unless she gave the same he would prose*
The learned judge, at the trial, charged: “There is contained in the answer an allegation- that the note was obtained from Mrs. Owen by reason of duress and undue influence. I shall charge you, as a matter of law, that there is no evidence of duress or undue influence; that there is no evidence but that-Mrs. -Eoe, in the giving of this note, acted voluntarily, and that she is liable as far as that defence is concerned in this action.” “Therefore I say if you find there was consideration for the support of this note, by the discontinuance of the action and the proceedings under the arrest, the endorsement had a good consideration. Consequently there remain but two questions that it is necessary for me to submit to you in connection with this matter: 1st. Was this note.given for the compounding of a felony. 2d. If it was not so given, for the purpose of compounding a felony, did Mr. Ingersoll make false representations in regard to Ms right to send Mr. Owen to State’s prison, and that for the purpose of' avoiding that supposed right of Mr: Ingersoll, Mrs. Eoe endorsed this note, and for no other purpose ?” •
The counsel for the defendant excepted to so much of the above charge as instructed the jury that the discontinuance of the action and the proceedings against Owen was a sufficient consideration to support the endorsement of the note ; and also .to the charge that “If the jury find that there was consideration for the support of tMs note by the discontinuance of the action, and the proceedings under tire arrest, the endorsement had a good considerationand also to so much of the above charge as instructed the jury that there remained but two questions, that it was necessary to submit to them ; first, was tMs note given for the compounding of
There could not, on the evidence, be any proper ground for submitting to the jury for their determination, the question whether the note was given for compounding a felony. It had, perhaps, some tendency in diverting the minds of the jury from the true inquiries in the case. No pretence can be made that any felony had been committed ; so none could have been compounded; and the submission to the jury of an inquiry of that description, was inappropriate to the proper considerations they were called upon to make.
Nor was it correct to instruct the jury that there were but two questions—as to the compounding a felony, and the false representations—to be submitted to them. Another, and most important question, fairly aróse upon the testimony, and should have been, under proper instructions, submitted to the jury; and that question was whether the note and endorsement were obtained by undue influence. It was certainly error for the court to withdraw that question from the jury and to charge them that there was no evidence of undue influence. Upon the testimony above detailed there was sufficient evidence for the jury, to consider, and find whether or not undue influence was used. The plaintiff was a lawyer. He was dealing with two women, one of whom was suffering under infirmity of body, and both of whom were greatly excited in mind. They had no opportunity of independent, professional, or other advice, and were not competent to determine whether the plaintiff had the professed power to send Owen to' the State’s prison or not. If advantage was taken,.by that threat, or other representations of the plaintiff, so that the signature to
Ingraham and Fancher, Justices.]
The judgment should be reversed and a new trial ordered, with costs to abide the event.