Buckley v. Mayor of New York

30 A.D. 463, 52 N.Y.S. 452

Opinions

Barrett, J.:

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 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 the. ca/r / at the first notification when I told him to stop, he did stop, for I told him I would have him arrested.”

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.) 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, or by threatening to do these acts, so that he is induced to pay the money demanded, under a reasonable apprehension that he cannot carry on his business without yielding to the illegal demand, is an illegal conspiracy; the acts done under it are illegal, and the money thus obtained may be recovered bade.

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, 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 v. The Mayor, etc. (125 N. Y. 625), “ * * * implies that there is some fact or circumstance which overcomes the will and imposes a necessity of payment in order to escape further ills.” So in Maxwell v. Griswold (51 U. S. 256) it was said that it suffices to make a payment involuntary if it “is caused on the one part by an illegal demand, and made on the other part reluctantly and in consequence of that illegality, and without being able to regain possession of his property except by submitting to the payment.” This was there called the obtaining of money by a moral duress not justified by law.

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 of the case, it was held to be recoverable.” This case (Harmony v. Bingham) is a direct authority against this particular contention of the defendant. In his concurring opinion there, Judge Ruggles goes over the same ground, citing Chase v. Dwinal (7 Maine, *134), and quoting from Judge Weston’s opinion in the latter case in these words: “ That replevin would have restored the property unlawfully seized, but to procure a writ and an officer to serve it would have occasioned delay, which might have subjected the plaintiff to greater loss than the payment of the money demanded. Besides, he must have given a bond to the officer to prosecute his suit, and he might meet with difficulty in obtaining sureties, and that the delay in bringing a trespass suit to a finale might have been attended with serious inconvenience.”

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 pelled the Comptroller to give them the required certified copy of their charter, still they were not bound to take the hazards of delay and the risk of having to litigate the question, and treat the requirements and threats of these appointees of the Comptroller as idle words. They might, as they did, pay -the money exacted, and when the pressure under which they paid was removed, submit the right to determination, as they have done, by reclaiming the money as an illegal exaction, as money obtained by the defendants without consideration, and which, in justice and equity, they may not retain.” It would be difficult to find a stronger authority than this for the plaintiff’s right to recover here.

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 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 píete his unfinished building. Their demand was accompanied with threats, made to Walker’s workmen, that unless this money was paid the latter would be arrested by the defendant’s other agents, also acting within the scope of their authority, and the work stopped. This demand and these threats were communicated to Walker, and he paid the amount in the belief that such threats would be executed. He paid it under the stress of the necessity for prompt completion of his unfinished building. And the defendant, with full knowledge of the facts, now ratifies the acts of these agents, stands by them in fact, and unconscionably insists upon retaining the money thus acquired. Upon both principle and authority we think it clear that this amounts to coercion in fact, and that the defendant should be compelled to make restoration.

The judgment should be affirmed, with costs.

Patterson and O’Brien, JJ., concurred; McLaughlin, J., dissented.