
    (37 App. Div. 345.)
    BISHOP v. CORNING.
    (Supreme Court, Appellate Division, Fourth Department.
    February 3, 1899.)
    Voluntary Payment.
    Plaintiff’s recovery of a bank book cannot be defeated on the principle of voluntary payment, where, her son having accidentally set fire to defendant’s property, she transferred the book to defendant, not willingly, but because of some supposed legal liability on account' of the son’s act; defendant having no right, or pretense of right, but merely having asked plaintiff if slie could not make him some recompense for the loss, and asked her to sign a writing transferring the hook.
    Appeal from trial-term, Monroe county.
    Action by Julia Bishop against. J. Sherwood Corning. From a judgment on a verdict directed for plaintiff and from an order denying a new trial, defendant appeals.
    Affirmed.
    The following is the opinion of the court below (NASH, J.):
    “Both parties having moved, to direct a verdict, it became a question of law for the court to determine, upon all of the evidence, which of the parties was entitled to recover. The action is replevin for the recovery of the plaintiff’s bank book, delivered in pursuance of, or in accordance with, a writing executed and delivered by the plaintiff to the defendant, by the terms of which the plaintiff agreed to give to the defendant the sum of $400 and the interest upon a deposit of that sum in the East Side Savings Bank of Rochester, N. Y. The writing recites that the son of the plaintiff having, while, playing with matches, unintentionally set fire to the defendant’s buildings, she, of her own free will, desired to make ‘part payment of the .loss’ sustained by the act of the plaintiff’s son. The plaintiff’s husband was "in the defendant’s employ as a farm laborer. He was without property. The defendant made a claim upon the husband for some compensation for his loss. The husband said he had no property. The defendant said to him that his wife had money in the bank, and asked him to speak to her about it, which he refused. The defendant then applied to the plaintiff, and asked her if she could not make him some recompense for the loss. She said she had only this $400 her mother left her; that she thought it would be pretty hard to give that up, but that she would do it if she had to. The defendant left with her a writing similar to the one in evidence, and requested her to sign it or write out a paper. She copied it, leaving out something that was said about the fire, signed, and gave the paper to the defendant, and delivered to him her bank book. The plaintiff and her husband are simple-minded English people, of apparently the limited information in regard to affairs that is ordinarily found in persons of their station in life, and were without knowledge as to their legal rights. The transfer of the plaintiff’s bank book to the defendant was not in fact voluntary, as stated in the writing. While there was no such duress or restraint as would avoid a contract upon that ground, she did not give up her bank book willingly. It was because she felt that she had to do it on account of some supposed legal liability to the defendant for the act of her son. The transfer of the bank book was wholly without consideration, legal or moral, and ought not to be upheld, unless some imperative rule- of law requires it. The doctrine of voluntary "payment is invoked to sustain the validity of the transfer. This doctrine proceeds upon the rule that a person cannot yield to an asserted right, and pay a sum of money demanded on account of such right, and afterwards maintain an action to recover it back, on the ground that he was not legally forced to do the thing demanded. Pierson v. Crooks, 115 N. Y. 554, 22 N. Y. 349. The authorities cited in support of the defendant’s contention, that .the doctrine of voluntary payment is applicable, are all cases where the action was in the nature of an action for money had and received, voluntarily paid upon the compromise of a doubtful claim, or payment of a void assessment, or a tax paid by the plaintiff which he was under no obligation to pay, because the assessment was void. In all such cases, the courts hold that the doubtful claim or the illegal assessment or tax must be resisted; if paid voluntarily, with full knowledge of the facts, the money cannot be recovered back. Here the agreement to pay and the transfer of the bank book were not made in satisfaction of a claim which could have been properly made the subject of a compromise or which was of doubtful validity. The promise to pay, pursuant to which the bank book was delivered, is without foundation in law. The plaintiff did not yield to an asserted right. There was no right, or pretense of right, of the defendant to the payment. The transfer of the bank book was made because of some supposed liability where there was none, and where no .claim of right could have been asserted-It is suggested that, there being an agreement to give and a delivery of the bank book, it may be upheld as a gift. There being no intention of the plaintiff to .make a gift, it cannot be regarded as such. In equity and good conscience, the bank book belongs to the plaintiff; and, without an authority precisely in point adverse to the plaintiff’s right to recover, I am of the opinion that the plaintiff was entitled to the direction of a verdict awarding to her the possession of her property. The case is not embarrassed by any claim made in behalf of the defendant that an action by the plaintiff to recover possession of the bank book is not the proper remedy. Motion for a new trial upon the minutes denied.”
    Argued before HARDIN, P. J., and FOLLETT, ADAMS, MCLENNAN, and SPRING, JJ.
    J. A. Adlington, for appellant.
    Zachary P. Taylor, for respondent.
   PER OURIAM.

Judgment and order affirmed, with costs, on the opinion of NASH, J., delivered at trial term.  