Day v. Studebaker Bros. Manufacturing Co.

13 Misc. 320, 34 N.Y.S. 463, 68 N.Y. St. Rep. 366

• Court: City of New York Municipal Court
• Decided: June 15, 1895
• Status: Published

Opinion

Conlan, J.

This is an appeal from a judgment entered on the verdict of a jury, and from an order denying a motion for a new trial.

This action was brought to recover back the sum of $300 claimed to have been paid to the defendant under duress.

The evidence shows that about August, 1891, the defendant corporation was engaged in manufacturing carriages in South Bend, Indiana.

The plaintiff was in its employ, with an office in the city of New York.

About October of that year the plaintiff went to South Bend, where he had a conversation with an officer of the defendant, in which it was claimed that plaintiff had received §500 which belonged to the defendant; this claim was resisted. by the plaintiff, who claimed the money belonged to him.

. Plaintiff also testified that he was given to understand that his services would not be needed by the defendant unless he paid over this money.

After some further talk it was agreed that $300 should be turned or paid over to defendant instead of the §500 originally claimed, and which sum plaintiff transferred to the credit of the defendant on his return to New York.

Assuming the money to belong to the plaintiff, .this action cannot be maintained.

The payment of the money after his return was purely a matter of business policy and lacked every essential element of duress.

The defendant was under no obligation to retain the services of the plaintiff, and if plaintiff saw fit to p^ty $300 as the price of his retention in the employ of the defendant he is bound by his bargain.

It might with equal force be urged that if odefendant had informed plaintiff that unless he consented to take less salary than he was getting then he would be discharged, and plaintiff, desirous of retaining his place, consented, that he could subsequently recover his original salary.

Such a proposition could not be entertained for a moment.

The money was transferred to defendant after plaintiff’s return to New York, and after ample opportunity to realize what he was doing, and without any fraud or deception on the part of the defendant.

Where a party threatens to do only what he has a legal right to do there can be no duress. 6 Am. & Eng. Ency. of Law, 71; Secor v. Clark, 117 N. Y. 350; Barrett v. Weber, 125 id. 18-25 ; Doyle v. Rector, etc., 133 id. 372.

It follows that the plaintiff is without relief and that the defendant’s motion, made at the close of the plaintiff’s case, should have been granted.

Judgment reversed and a new trial ordered, with costs to abide the event.

Van Wyck and Newbubger, JJ., concur.

Judgment reversed and new trial ordered, with costs to abide event.