
    Gertrude Hess, Respondent, v. Nettie Cohen, Appellant.
    (Supreme Court, Appellate Term,
    May, 1897.)
    Payment — Duress.
    Pending an action of foreclosure tlie mortgagor procured a third person to loan the money and take an assignment of the mortgage as security. The mortgagee refused to make the assignment unless she was paid not only the principal of the mortgage with interest and costs, but also a certain sum for a policy of title insurance which her husband had lent to the mortgagor, which sum the latter paid under protest. Held, that there was no duress of person or property, and that the payment was, therefore, voluntary and could not be recovered.
    
      Appeal by defendant from a judgment of the justice of the Eleventh District Court in favor of plaintiff for $20 damages, besides costs.
    Ezekiel Fixman, for appellant.
    M. G. Holstein and Charles A. Hess, for respondent.
   Daly, P. J.

The plaintiff seeks in this action to recover back the sum of $20 exacted by the defendant’s attorney under the following circumstances. As appears from the record and the plaintiff’s brief, the defendant was foreclosing a mortgage upon plaintiff’s premises, and plaintiff had arranged for a loan from a third party, who agreed to take, as security, an assignment of the defendant’s mortgage. Defendant agreed to malee the assignment and a meeting was arranged to carry out the transaction. Defendant was represented at the meeting by her attorney, who demanded, in addition to her principal, interest and costs, the sum of $20 for a certain policy of title insurance On the premises which had previously been lent to plaintiff by defendant’s husband. Assignment of the mortgage was refused unless this sum was' paid. Plaintiff then paid it under protest and now seeks to recover it back on the ground that such payment was compulsory. ,

The payment was not compulsory, because there was no duress of plaintiff’s person or property and there was no fraud on' defendant’s part. Flower v. Lance, 59 N. Y. 603, 610. The delay, inconvenience and expense to which plaintiff might have been subjected by resisting the demand' does not amount to legal compulsion. The fact that business necessities compelled the payment of money will not alter the voluntary character of the payment.” 6 Am. & Eng. Ency. of Law, 71, and cases cited. Where a debtor refused to pay in part a debt due, unless his creditor gave a receipt in full and his exaction was complied with, it was held that there was no duress, as he had done nothing to create the financial embarrassment which compelled submission to the extortion, Id. 72; Hackley v. Headley, 45 Mich. 569. Where an ice company, which was under contract to supply ice to-a brewer, took .advantage of a subsequent failure of the ice crop and subsequent , short supply to refuse to furnish ice under the contract, and the brewer, who.had on hand a considerable quantity .of beer that, would be spoiled without ice, under stress , of the circumstances, made a new contract at a higher price, it was held that such new contract was not obtained by duress. Goebel v. Linn, 47 Mich. 489; 41 Am. Rep. 723.

In these cases, as in the case before us, the party acted with full knowledge of all the facts and with the option either to refuse to yield to the exaction and rest upon his legal remedies, or to submit for the sake of present advantage. The payment was, therefore, as voluntary as any agreement for a price for what is desired or must be had. The necessities of one of the parties to a contract do not make the contract invalid. If so, “ a contract which would be valid if made with a man easy in his circumstances becomes invalid" when the contracting party is pressed with the necessity of immediately meeting his bank paper. But this would be a most dangerous as well as most unequal doctrine; and if accepted no one could well know when he would be safe in dealing on the ordinary terms of negotiation with a party who professed to be in great need.” Hackley v. Headley, above.

Hor can the recovery be had on the ground that it was the exaction of unlawful costs by the attorney, i. e., an officer of the court or public officer. • The action is not against the attorney as in the case cited by appellant (Britton v. Frink, 3 How. Pr. 102), and the demand was not of costs.

Judgment reversed and new trial ordered, costs to appellant to abide the event.

McAdam and Bischoff, JJ., concur.

Judgment reversed and new trial granted, costs to appellant to abide event.  