
    Joseph F. Day, Resp’t, v. Studebaker Bros. Manufacturing Company, App’lt.
    
      (New York City Court, General Term,
    
    
      Filed June 25, 1895.)
    
    Duress — What is.
    A threat by a person to do what he has a legal right to do is not duress.
    
      Appeal from a judgment in favor of plaintiff.
    
      Ver Pank & Young, for app’lt; Burr & De Lacy, for resp’t.
   Conlan, J.

— This is an appeal from a judgment entered on the verdict of a jury, and from an order denying a motion for a new-trial. This action was brought to recover back the sum of $300-claimed to have been paid to the defendant under duress. The evidence shows that about August, 1891, the defendant corporation was engaged in manufacturing carriages in South Bend, Ind„ The plaintiff was in its employ, with an office in the city of New York. About October of that year, the plaintiff went to South Bend, where he had a conversation with an officer of the defendant, in which it was claimed that plaintiff had received $500 which belonged to the defendant. This claim was resisted by the plaintiff, who claimed the money belonged to him. Plaintiff also testified that he was given to understand that his services would not be needed by the defendant unless he paid over his money. After some further talk, it was agreed that $300 should be turned or paid over to defendant, instead of the $500 originally claimed, and which sum plaintiff transferred to the credit of the defendant on his return to New York.

Assuming the money to belong to the plaintiff, this action cannot be maintained. The payment of the money after his return was purely a matter of business policy, and lacked every essential element of duress. The defendant was under no obligation to retain the services of the plaintiff, and, if plaintiff saw fit to pay $300 as the price of his retention in the employ of the defendant,, he is bound by his bargain. It might with equal forced be urged that if defendant has informed plaintiff that, unless he consented, to take less salary than he was getting, he would be discharged,, and plaintiff, desirous of retaining his place, consented, he could subsequently recover his original salary. Such a proposition could not be entertained for a moment. The money was transferred to-defendant after plaintiff's return to New York, and after ample opportunity to realize what he was doing, and without any fraud or deception on the part of the defendant. Where a party threatens to do only what he has a legal right to do, there can be no duress. 6 Am. & Eng. Enc. Law, p. 71; Secor v. Clark, 117 N. Y. 350 ; 27 St. Rep. 169 ; Barrett v. Weber, 125 N. Y. 18-25 ; 34 St. Rep. 358 ; Doyle v. Rector, etc., 133 N. Y. 372; 45 St. Rep. 205. It follows that the plaintiff is without relief, and that the defendant’s motion at the close of the plaintiff’s case should have been granted.

Judgment reversed, and a new trial ordered, with costs to abide the event. All concur.  