Opinion
Argued October 25, 1889
Decided November 26, 1889
G.W. Cotterill for appellant.
Horace Secor, Jr., for respondents.
On the 28th day of March, 1883, Freeman J. Fithian, a lawyer practicing his profession in the city of New York, was carrying on an action for the New England Iron Company against the Metropolitan Elevated Railroad Company, under a written agreement whereby he was to receive as compensation for his services a certain percentage of the recovery in the action; and thereafter, on the 8th day of August 1883, he assigned to the plaintiffs, in consideration of $5,000, an interest of $10,000 in his agreement with the New England Iron Company. In August, 1884, while the action was still pending, Fithian died leaving a last will and testament in which Lemuel B. Clark, the defendant's testator, was named executor, and he was also the law partner of Fithian. On the 23d day of February, 1886, the action of the Iron Company against the Elevated Railroad Company was settled for $250,000; and Clark, in his capacity as executor and surviving partner, received, under the agreement of Fithian with the Iron Company, the sum of $25,000. Thereafter the plaintiffs, in consideration of the sum of $8,500 paid to them by Clark sold, assigned, transferred and set over to him all their right, title and interest in the assignment executed to them by Fithian, and in all moneys, benefits and advantages to be derived therefrom, by an instrument signed by them under seal. Subsequently, on the fifth day of March, the plaintiffs commenced this action against Clark, to set aside the instrument executed by them and to recover the sum of $1,500, the balance of the $10,000 which they claimed they were entitled to under their agreement with Fithian; and the allegations in their complaint, upon which they seek to have the assignment declared void are as follows:
"That these plaintiffs, knowing said defendant to be utterly unscrupulous, and believing that he would use every device to prevent or delay the collection of said money by them, and that it would take some time to recover a judgment therefor, and that they might not then be able to collect it, and that the amount was too large to hazard its remaining in the possession of the defendant, thereupon unwillingly executed and delivered said assignment to the defendant, receiving said sum of $8,500."
Upon the trial, substantially, the only evidence to sustain the action was that of the plaintiff Secor, as follows:
"I signed the assignment because I believed that Clark would use every device to prevent or delay the collection of the money; also because I believed it would take some time to recover a judgment against him for the money, and that after the recovery of a judgment I feared our ability to collect it, and I thought the amount was too large to hazard its remaining with him pending a suit for its collection; and that, therefore, I unwillingly signed the assignment."
There is no allegation in the complaint, and there was no proof upon the trial of any fraud or deception practiced by Clark in procuring the assignment from the plaintiffs. At the time they executed it they knew all about the facts, and the substance of their claim is that they took the $8,500 for fear they would not be able to collect the $10,000, or might be delayed in collecting it, or might be subjected to expense in collecting it. Such things do not constitute duress within any authority to be found in the books, and do not entitle the plaintiffs to any relief. Two of them were lawyers, all of them competent business men, understanding their rights and able to defend and enforce them. There was nothing so peculiar in their position, or in the position of Clark, as to give them any stronger or better claim for relief than any creditor would have who compromises a claim against his debtor for fear that he would be subjected to expense, delay and risk in enforcing payment thereof. The case is so clear and free from doubt that it would be a waste of time to cite or comment upon the authorities.
We find no errors in the rulings of the trial judge, and the order of the General Term should, therefore, be reversed, and the judgment of the Special Term affirmed, with costs.
All concur.
Ordered accordingly.