Opinion
Argued January 8, 1934
Decided January 16, 1934
Appeal from the Supreme Court, Appellate Division, Fourth Department.
Clark H. Hammond and Robert J. Schutrum for appellant. Elijah W. Holt for respondent.
Payments coerced by duress may be recovered back. "The coercion, however, must be illegal, unjust or oppressive." ( Deshong v. City of New York, 176 N.Y. 475, 479.) The complaint alleges no facts showing that it was illegal, unjust or oppressive for the town to attempt to collect moneys apparently due to it from the Supervisor. The words "wrongfully claimed" state a mere conclusion and do not imply that defendant knew that plaintiff had expended the money for authorized town purposes. All that is alleged is consistent with threats to enforce what the town believed to be its legal rights, which do not constitute duress. ( Benson v. Monroe, 61 Mass. 125, 131.)
The order of the Appellate Division and that of the Special Term should be reversed, the question certified answered in the negative and the complaint dismissed, with costs in all courts. The plaintiff may have thirty days in which to serve an amended complaint on payment of costs.
POUND, Ch. J., CRANE, LEHMAN, KELLOGG, O'BRIEN and HUBBS, JJ., concur; CROUCH, J., dissents.
Ordered accordingly.