
    John B. Scholey, Executor, etc., Appellant, v. George H. Mumford et al., Respondents.
    (Argued April 5, 1875;
    decided April 20, 1875.)
    Where one, having in his possession property belonging to another, refuses to deliver it to the owner unless the latter pays a sum of money which the former has no right to receive; and, in order to obtain possession the owner pays the sum required, the payment is by compulsion, and may be recovered back.
    Defendants, having in their hands $85,000 of bonds belonging to the estate of which plaintiff was surviving executor, which came into their possession through a deceased executoi-, refused to deliver them up until a sum, claimed by them as due the estate of the deceased executor, for commissions on the amount of the bonds, was paid. This claim was disputed by plaintiff. The parties appeared before the surrogate, who decided that defendants were entitled to the .commissions. Plaintiff paid them to obtain the bonds, and afterward applied to the surrogate for a rehearing, who, upon such rehearing, reversed his former decision. In an action to recover the sum thus paid, held (Miller, J., dissenting), that the payment was not voluntary, and that plaintiff could recover it back.
    Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department, in favor of defendants, entered upon an order denying a motion for a new trial and directing judgment upon a verdict.
    This action was brought to recover back moneys paid under the following circumstances:
    The plaintiff and George H. Mumford were executors of the will of Elizabeth Scholey. Mr. Mumford died having'in' his possession certain United States bonds, to the amount of $85,000, belonging to the estate of Mrs. Scholey. These came to the hands of defendants, who were Mr. Mumford’s executors. They refused to deliver up the same unless certain commissions, which they claimed due their testator, were paid ; among them was a claim for commissions of one-half of one per cent upon the value of the bonds. They filed in the surrogate’s office the account of their testator, as executor. It was undisputed, save as to the said commissions. This was submitted to the surrogate, who decided adversely to the plaintiff, whereupon to obtain the bonds he paid the claim and received the bonds. ffsTo formal order was entered. Subsequently plaintiff applied for a rehearing. An order and citation were issued. The defendants appeared, and upon the rehearing the surrogate reversed his previous decision. The defendants refused to refund the moneys. The court directed a verdict for defendants. Exceptions were ordered to be heard, at first instance, at General Term.
    
      Francis A. Macomber for the appellant.
    The payment of the illegal commissions was made under duress of the plaintiff’s bonds and they can be recovered back. (Harmony v. Bingham, 12 N. Y., 108; Briggs v. Boyd, 65 Barb., 197; 1 Hill, on Torts, 46; 1 Stephens N. P., 358 ; Morgan v. Palmer, 2 B. & C., 729; Clinton v. Strong, 9 J. R., 201, 370; Bates v. N. Y. Ins. Co., 3 J. Cas., 238; Townsend v. Dyckman, 2 E. D. S., 224; Moulton v. Bennett, 18 Wend., 586 ; Britton v. Frink, 3 How. Pr., 102; Dayton on Sur., 538; 2 Stat. at Large, 468, §§ 11, 17; Shook v. Shook, 19 Barb., 653.)
    
      Geo. F. Danforth for the respondents.
    The payment was voluntary and the money cannot be recovered back. (Smith v. Spalding, 3 Rob., 618 ; Jacobs v. Morange, 47 N. Y., 58 ; Mowatt v. Wright, 1 Wend., 355, 364; Suprs. of Onondaga, 2 Den., 39; Wyman v. Farnsworth, 3 Barb., 369; 8 East, 468; 5 Taunt., 142.)
   Rapallo, J.

That the sum paid by the plaintiff to the defendants was illegally demanded, and that they had no just right to it, is not denied. But they claim to retain it on the ground that the payment was voluntary ; and they cite the elementary rule, that, by submitting to the demand, he that pays the money gives it to whom he pays it, and makes it his, and closes the transaction between them.”

The court, at the trial, sustained this claim of the defendants, and decided that, although the defendants were not entitled to the commissions claimed, yet, the payment thereof, in the manner proved, was a voluntary payment, and, therefore, the money could not he recovered; and, solely upon that ground, directed a verdict for the defendant.

Without passing upon the questions argued by the appellant, whether an executor can make a valid gift to a co-executor, or his representative, of funds belonging to the estate; or whether the payment in controversy was for fees illegally exacted, we are of opinion that the facts of the case clearly require us to hold that the payment was not voluntary.

The defendants had in their possession $85,000 of bonds belonging to the estate of which the plaintiff was surviving executor. These bonds had come to the possession of the defendants through George H. Mumford, deceased, who was, in his life, the co-executor, with the plaintiff, of the will of Mrs. Scholey. The complaint alleges that the defendants refused to deliver these bonds to the plaintiff until the sum in controversy, which was alleged by the defendants to be due to the estate of George H. Mumford, deceased, for commissions, was paid to them, and that this claim was disputed by the plaintiff. The parties appeared before the surrogate, who, in the first instance, decided that the defendants were entitled to the commissions. The plaintiff then paid them, and afterward applied to the surrogate for a rehearing upon the question, and upon such rehearing the surrogate reversed his former decision. The complaint, alleges that the plaintiff, although advised that the first decision of the surrogate was erroneous, nevertheless paid the sum claimed, in order to obtain the delivery of the bonds- to him. The defendants, in their answer, do not deny the allegation of the complaint that they- refused to deliver up the bonds except upon payment of the commissions, but, on the contrary, expressly admit “ that they would not have delivered up the bonds except upon the terms aforesaid,” i. e,, the payment of the commissions. The plaintiff testified that he was anxious to get the bonds \ that the defendant had, after the death of George H. Mumford, declined to give up the bonds, on the ground that commissions were due. The evidence is very meagre, but I think it sufficiently appeared, from the acts of the parties and the. admission in the answer, that this claim for commissions was disputed, and was yielded to simply as a means of obtaining possession of the bonds to which the plaintiff was entitled, and which the defendants withheld from him for the purpose of coercing payment of the commissions.

To constitute a voluntary payment the party paying must have had the freedom of exercising his will. When he acts under any species of compulsion the payment is not voluntary. If a party has in his .possession goods, or other property, belonging to another, and refuses to deliver such property to that other unless the latter pays him a sum of money which he has no right to receive, and, in order to obtain possession of his property. he pays that sum, the money so paid is a payment made by compulsion, and may be recovered back. (Per Bayley, J., Shaw v. Woodcock, 7 B. & C., 73.) This has been frequently decided. Where a pawnbroker refused to deliver plate pawned, except upon payment of excessive interest, and the owner paid it to obtain his property, he was allowed to recover back the excess. (Ashley v. Reynolds, 2 Stra., 915). An action will lie to recover back money paid to release goods wrongfully detained on a claim of lien (Ashmole v. Wainwright, 2 Ad. & El. [N. S.], 737; Harmony v. Bingham., 12 N. Y., 109, 116); or money wrongfully exacted by a corporation as a condition permitting a transfer of stock. (Bates v. N. Y. Ins. Co., 3 Johns. Cas., 238.) The cases to this effect are numerous. In all these cases the payment is regarded as compulsory, and not voluntary. I think the case at bar falls within the principle of these decisions. The amount of property was very large compared with the sum exacted ; and, from the conduct of the plaintiff, it may well be inferred that he preferred to pay it and take the chances of recovering it back, rather than to incur the hazard of having so large an amount of property in the hands of the defendants.

The claim of the defendants, that after the surrogate had decided that the defendants were entitled to the commissions, the plaintiff gave up the controversy, and consented to abide by the decision, is not sustained by the facts. The uncontroverted allegations of the complaint, that the defendants refused to deliver the bonds unless the commissions were paid; and that, after the first decision of the surrogate, the plaintiff, although advised that the decision was erroneous, did, nevertheless, pay them, in order to have the bonds delivered up to him, coupled with the steps which were very soon afterward taken by the plaintiff to obtain a reversal of the decision of the surrogate; and the allegations in the answer, that, after the first decision, the defendants notified the plaintiff that they would deliver up the bonds on payment of the amount claimed by them, and that they would not have delivered tfp the bonds except upon the terms aforesaid, sufficiently define the positions of the parties, and show that the payment was not the free and voluntary act of the plaintiff; but that he had no choice, and was compelled to submit to the demand in order to obtain immediate possession of the bonds.

The judgment should be reversed, and a new trial ordered, with costs to abide the event.

All concur; except Miller, J., dissenting.

Judgment reversed.  