1 Daly 71 | New York Court of Common Pleas | 1859
By the Court.
The plaintiff’s assignor, E. B. Kinshimer, was employed by the defendant as his agent, to coliect the rent of premises on Madison avenue, in this city. On the fifth of Kovemher, 1857, as such agent, he received a check for three hundred and fifty dollars from the defendant’s tenant, had it cashed, and used the proceeds in the payment of his own debts. On the fifth of December, 1857, having prior thereto endeavored to obtain payment of the sum named, from Kinshimer, and having commenced an action for the recovery the defendant also procured a warrant for his arrest on a charge of embezzlement, and upon an affidavit in which the defendant alleged that Kinshimer. had acted as his servant in collecting rents, and had collected and embezzled the sum named. On the day the warrant was issued, the defendant and an officer named Spicer, proceeded to the vicinity of the residence of Kinshimer, where, about four or five o'clock P. M., he was arroste.d, almost immediately put into one of the Fourth avenue cars, and taken in that mode toward the Centre street prison, in custody of Spicer, and accompanied by the defendant. While thus in custody, and as he says, through fright and fear of being locked up in the Tombs, he let the defendant have his watch. The testimony is conflicting as to the facts and circumstances attending the delivery of the watch, but it is not disputed that the watch was offered by Kinshimer to the defendant, and accepted by the defendant, while Kinshimer was in custody under the warrant aforesaid, and soon after lii's arrest. There is also evidence in the case tending to establish that the defendant accepted the watch only in part settlement of che civil claim, without relinquishing, or expressing any intention of abandoning the criminal complaint, And it appears that that complaint after a hearing before the
_ 1. If Mr. Kinshimer was arrested for improper purposes without just cause, and delivered his watch in question to the defendant for his enlargement, the watch under those facts was delivered by duress of imprisonment, and the plaintiff may recover its value in this action.
2. If Kinshimer was arrested for just cause and under lawful authority—but his arrest wras procured by the defendant for the purpose of obtaining the watch, or obtaining from him security for a debt, and Kinshimer delivered the watch to the defendant for the purpose of procuring his enlargement—the plaintiff has a right to recover the value of the -watch in this action- .
. 3. If the arrest of Kinshimer was illegal, and he, through ffar, delivered the watch to the defendant for any purpose, ■L bets constitute duress, and the plaintiff is entitled to recover.
The Court refused to charge either of these requests, and as cc- .1 ‘h plaintiff excepted. The jury found for the defendant •: di by Buller (Nisi Prius, 172), that if duress be pi • " : ■’ e deed is admitted, and the issue lies upon the detenu.. and that it is sufficient if it appear that the arrest, though for a good debt, was .without good authority. And in Richardson v. Duncan, (3 N. Hamp. 508), it was held that an arrest for a just cause, and under lawful authority, if it he made for unlaisful ypnrjposss, may be constituted as a
If the arrest of Kinshimer was illegal, and he, through fear of imprisonment, gave his watch to the defendant, either to compromise the alleged felony, or to settle the civil suit, the result is the same. Wo title passed, and the plaintiff was entitled to recover. The question how far Kinshimer was affected by fear should have been submitted to the jury. It was not enough to submit to them whether Kinshimer voluntarily gave the watch to the defendant. He might have voluntarily done so, impelled by fear of imprisonment. The defendant’s position was a false one. Kinshimer was in his power by process improperly obtained, and he could not avail himself of that position, or anything resulting from it. It was a mistake of the defendant's, doubtless, but everything derived or resulting from it while Kinshimer was under that influence, should ir. .< ’vrimttou to continue. "Whether he was under that . c-- " ■ -dd have been submitted to the jury. For these - h^ judgment should be reversed.