97 Misc. 384 | N.Y. App. Term. | 1916
The complaint herein alleges that the defendant was the owner of a saloon on Sixth avenue. That the plaintiff was duly licensed by the city of New York to maintain a news stand on the corner where the defendant’s saloon was situated, but wholly on the property of the city. At this news stand the plaintiff conducted his business of selling newspapers and periodicals. The complaint then continues: “ VI. That on or about or in the month of July, 1904, the defendant herein unlawfully demanded of the plaintiff herein the sum of Fifteen Dollars per month for the privilege of maintaining the said news stand at the aforesaid corner and then and there threatened that if the said sum was not paid to defendant he would cause the license of the plaintiff to be taken away and would cause the plaintiff to be ousted from said location. VII. That under duress of the aforesaid threat and in apprehension of injury to the plaintiff’s business at the aforesaid news stand, the plaintiff herein thereafter regularly paid the sum of Fifteen Dollars per month to the defendant herein until the month of June, 1910, etc.”
The defendant moved for judgment on the pleadings and this motion has been granted on the ground that “ the allegations of the complaint do not show actionable duress.” From this order the plaintiff now appeals.
The defendant contends that if we strip the complaint of its conclusions of law, there are no allega
The defendant seems to maintain that, inasmuch as he is not a public officer and has no power to take away the plaintiff’s license or to oust him from his location, there could be no duress. Duress, however, may be exercised by threats as well as by force and if the defendant represented that he had the power — legally or illegally — to take away the plaintiff’s license and the plaintiff believed that he could make his threat good, then of course it becomes immaterial that defendant did not possess such power. It is true that the complaint does not expressly allege either that the defendant claimed such power or that the plaintiff believed such claim, but I think that such a claim can well be implied from the making of the threat and that the allegation that the plaintiff acted ‘ ‘ in apprehension of injury to his business ” shows that he believed that the threat could be made good.
It seems to me, therefore, quite clear that the complaint sets forth a good cause of action for money paid under duress if the threat is one which the defendant had no right to make. Our courts have held that a threat to appeal to the courts or to use the process of the courts even for a malicious and wrongful purpose cannot constitute duress and the defendant seems to rely largely on these cases. In the present case, however, the threat was not to appeal to the courts to use their process against the plaintiff. It was not a threat to bring the plaintiff into a tribunal where his legal rights could be tested but on the contrary was a
The only remaining points to be considered are whether the Statute of Limitations has run or whether by continuing the payment for years the plaintiff has acquiesced in the defendant’s demand. Of course the answer to both these questions depends upon the time when the compulsion through fear ceased. The reply states that all payments were made under continual apprehension as long as defendant was in possession of the saloon and that as soon as the defendant removed -from the saloon this action was begun, and for the purposes of this motion the allegations of the reply must be accepted as true.
Order should be reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.
Whitaker, J., concurs; Finch, J., concurs in result.
Order reversed, with costs.