
    Lewis Stono, App’lt, v. Herman Weiller, Resp’t.
    
      (Supreme Court, General Term, First Department
    
    
      Filed June 26, 1890.)
    
    1. Jury — Right of trial by — Malicious prosecution and fraudulent RELEASE.
    An action to set aside a release as fraudulent and procured by duress, and for malicious prosecution, is properly triable before the court without a jury, as only courts of equity can set aside an agreement as fraudulent.
    Í. Duress — Release.
    Proof that threats were used to procure the execution of a release is not alone sufficient to show that it was procured by duress; it must also appear that it was executed because of such threats or that they constrained the will of the plaintiff and induced the execution of the release.
    Appeal from judgment of special term dismissing complaint. A. B. Moore, for app’lt; S. F. Higgins, for resp’t.
   Van Brunt, P. J.

This action was brought to set aside a general release executed by the defendant and to recover damages for malicious prosecution. Upon the case coming up for trial before a judge and jury, the court refused to try the case with a jury and sent the case to the special term for trial, upon the ground that equitable relief was asked for, to which the plaintiff excepted. The case subsequently came up for trial at special term before a judge without a jury, and upon the evidence offered upon the part of the plaintiff the court dismissed the complaint, which ruling was excepted to, and these exceptions are the ones which are brought up by this appeal.

It is urged°that the plaintiff had a right to a trial of the questian of the fraud in the release by a jury, and that the practice of allowing questions of this character to be heard by a jury is as old as civilization.

We think, however, that under any condition of the pleadings the allowing of such questions to be tried by a jury as matter of right is quite a modern innovation. It is undoubtedly true that if the pleader had drawn his complaint in proper form, he might have had this question of duress in respect to the release tried by a jury. But he has chosen in his complaint to assail the release and ask that it be adjudged fraudulent and void, and only a court of equity can grant such relief. If he had sued for the damages for malicious prosecution, ignoring the release altogether, and the defendant had set it up as a defense in his answer, he might have attacked the release before a jury; but having asked to have it set aside in his complaint, the action was properly triable before the court without a jury. In fact, until the innovations introduced by the Code, he could not have maintained his action for malicious prosecution at all without first bringing his action in equity to set aside the release.

It appears from the evidence that the plaintiff had been arrested for embezzlement, and that while under arrest the defendant had made threats that unless the plaintiff paid him fifty dollars and his attorney twenty-five dollars and gave a general release he would send him to the state prison.

But there is no evidence in the case upon the part of the plaintiff that he executed this release because of such threats or that they constrained the will of the plaintiff and induced the execution of the release. It may be that the plaintiff intended that this should be inferred. But no such evidence appears in the case presented upon this appeal. It appears to us that the absence of this class of evidence is fatal to the plaintiff’s claim. Had it been present an entirely different case would have been presented.

In the cases of Dunham v. Griswold, 100 N. Y., 224, and Schoener v. Lissauer, 107 id., 111; 11 N. Y. State Rep., 368, it was held that such threats, where a party is under arrest, will support the claim that a promise was obtained by duress per minas.

There being no evidence, however, that these threats were the inducing cause of the execution of the release, we think the judgment appealed from should be affirmed, with costs.

Brady and Daniels, JJ., concur.  