25 A.D. 577 | N.Y. App. Div. | 1898
The following facts appeared upon the trial: The plaintiff became the owner of the premises Hos. 112, 114 and 116 Bleecker street, in the city of Hew York, by deed dated July 14,1896.' The houses which formerly stood on said premises had been torn down, and there was an-old existing vault in front of Ho. 112. A permit to construct said vault had been obtained by a former grantor of said-premises in Hovember, 1870, for which permit the sum of $251.50 was paid to the then commissioner of public works, and said vault was constructed and existed at the time of the conveyance of the property to the plaintiff. The plaintiff having made a contract with his grantor as to the erection of two houses, each thirty-seven feet and six inches wide, and for a builder’s loan, he started the work and applied to the commissioner of public works for a permit to construct vaults in. front of his premises, including the space occupied , by the vault in front of Ho., 112. The commissioner, stated that the charge would be two dollars a foot for the whole space, but that he would deduct and allow to the plaintiff seventy-five cents a foot, which had'been paid in 1870 for the vault in front of Ho.. 112. The plaintiff protested against paying this charge, which amounted to $437.50, but the commissioner would not issue fhe permit unless this sum was paid. The plaintiff, as ho claims, to -■avoid litigation, and fearing that the erection of his buildings would '.be delayed and interfered with and he be put to great loss, paid the money under protest. This action was brought to recover back the amount charged by the commissioner for the space ■ occupied by. ;the .original vault in front of Ho. 112.
It does not seem to be at all necessary to discuss the question as -to the respective rights of the plaintiff and the city in regard to the validity of the position taken by the city, that the plaintiff had no . rightful claim to the vault space under the sidewalk in front of Ho. 112. The payment of the sum for the permit to erect vaults in
It is urged that to constitute a voluntary payment the party paying must have had freedom to exercise his will, and that if he acts under any species of compulsion the payment is not voluntary. In the case at bar 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 so far as Ho. 112 was concerned, and he might very well have contented himself with an application for a permit as to the rest of the premises and then proceeded with his building if he could do so according to law. 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 verdict must be set aside and a new trial ordered, with costs to defendant to abide the event.
Patterson, O’Brien, Ingraham and McLaughlin, JJ., concurred.
Verdict set aside and new trial ordered, with costs to defendant to abide event.