
    James C. McGuire & Company, Respondent, v. H. G. Vogel Company, Appellant.
    (Supreme Court, Appellate Term, First Department,
    June, 1914.)
    Municipal Court of city of New York — jurisdiction—illegal and fraudulent use of process of court — action for moneys had and received alleged to have been paid under duress.
    The Municipal Court of the city of New York has jurisdiction of an action for money had and received alleged to have been paid under duress.
    
      The complaint herein considered and held to allege a good cause of action to recover moneys paid under duress by plaintiff to defendant, said duress being a threat made, for the purposes of extortion, to illegally and fraudulently use a process of court in the prosecution of an unfounded claim with the avowed intent of destroying and removing property belonging to plaintiff.
    Burra, J., dissents.
    Appeal by defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, third district, in favor of plaintiff for $402 damages, besides costs, entered upon the overruling of a demurrer following defendant’s failure to plead over, as the interlocutory judgment permitted it to do.
    David Bernstein, for appellant.
    Warren McConihe, for respondent.
   Guy, J.

This action was brought to recover money had and received alleged to have been paid under duress. The complaint alleges that on or about April 23, 1913, plaintiff was the general contractor for the construction of a building, and that on said date it entered into a contract in writing with the defendant wherein and whereby defendant agreed to install an automatic fire sprinkler system in said premises, which should conform with the requirements of the New York Fire Insurance Exchange and be approved by said exchange, for the sum of $7,850, which plaintiff agreed to pay therefor; that on June 12, 1913, the New York Fire Insurance Exchange required the installation of certain floor valves, which requirement was covered by said agreement between plaintiff and defendant and was part of the defendant’s duty to install: that on or about October 18, 1913, defendant 11 in order to wrongfully obtain from this plaintiff the sum of $395, and to injure and prejudice this plaintiff in the completion of its contract with the owner of said building, * * * falsely, fraudulently, illegally and with intent to oppress this plaintiff, threatened this plaintiff that unless it paid the said defendant $395, being the alleged value of said requirements of the New York Fire Insurance Exchange in said sprinkler system, within three days, that it, the said defendant, would issue a replevin suit and remove the sprinkler system from said premises, notwithstanding the fact that this plaintiff hád paid almost the entire purchase price thereof, which threatened action on the part of this defendant would have caused this plaintiff irreparable injury and ■ damage, ’ ’ that on or about January 16, 1914, plaintiff, under protest and solely by compulsion and under duress and by reason of the aforesaid threats, was compelled to and did pay the said defendant the said sum of $395, which amount plaintiff now seeks to recover.

The contention that the Municipal Court was without jurisdiction of such a cause of action is not well founded. Wilkenfeld v. Lynn, 55 Misc. Rep. 270-272. Defendant-appellant further urges that the complaint merely alleges a threat to resort to legal process or pursue a legal remedy and, therefore, did not constitute duress, citing Dunham v. Griswold, 100 N. Y. 224, 226; Lilienthal v. Bechtel Brewing Co., 118 App. Div. 205, 207. While the mere threat to pursue a legal remedy to which one is entitled does not constitute duress, because duress must he a wrongful act, and to prosecute a valid claim is not wrongful, irrespective of motive (Martin v. New Rochelle Water Co., 11 App. Div. 176; affd., 162 N. Y. 599; Lilienthal v. Bechtel Brewing Co., supra), the threat to pursue a legal remedy to which one is entitled, as alleged in the complaint herein, may amount to duress. The complaint alleges that defendant threatened to prosecute an unfounded claim and to wrongfully resort to legal process, for purposes of extortion. If the fact of extortion is established and there has been added to it the further fact that the person upon whom the extortion is practiced was in such a necessitous condition that to avoid a greater harm and damage he was forced to submit to the extortion, then the element of consent will not be deemed to exist and the contract will be avoided. Van Dyke v. Wood, 60 App. Div. 208, 215; Harmony v. Bingham, 12 N. Y. 99. ‘ ‘ It has come to be the rule of law in this country * * * that where one is presented with the contingency of serious loss or damage to his property or of a submission to an extortionate claim, if he pay the claim or make the contract which is extorted from him, it is not to be considered a voluntary act, and it may be set aside on the ground of duress.” Van Dyke v. Wood, supra, 213.

Whether there was duress, a state of mind in which the person who seeks to avoid his act was, by the act or conduct of another, deprived of the power of voluntary action or consent, is, ordinarily, a question of fact, and, where duly alleged, furnishes the basis of a good cause of action.

The defendant-appellant relies mainly in its brief upon certain clauses stated by it to have been part of the contract between plaintiff and defendant, but the contract as set forth in the complaint contains no such provisions, and they cannot be considered in passing upon this demurrer.

The complaint alleges a good cause of action to recover moneys paid under duress by plaintiff to defendant, said duress being a threat, made for purposes of extortion, to illegally and fraudulently use a process of court in the prosecution of an unfounded claim, with the avowed intent of destroying and removing property belonging to plaintiff.

Interlocutory judgment "affirmed with leave to defendant to withdraw demurrer and answer within five days upon payment of costs in this court and in the court below.

Pendleton, J., concurs; Bijur, J., dissents.

Interlocutory judgment affirmed with leave to withdraw demurrer and answer within five days upon payment of costs.  