
    (92 App. Div. 449.)
    WOLFF v. CITY OF NEW YORK.
    (Supreme Court, Appellate Division, First Department.
    March 18, 1904.)
    1. Voluntary Payment—Permit fob Vault under Sidewalk—Duress.
    While plaintiff was altering the cover of a vault extending from' his building under the sidewalk—changing the material of the cover—a policeman threatened arrest if the work was continued without a permit. He thereupon signed an application for a permit to construct a vault in front of his premises, and obtained the permit of the department of public works on payment of the sum offered in his application. Reid, that the payment was voluntary, and cannot be recovered.
    McLaughlin and O’Brien, JJ., dissenting.
    Appeal from Trial Term.
    Action by Julius Wolff against the city of New York. From a judgment dismissing the complaint, entered on a decision of the court—a jury being waived—plaintiff appeals. Affirmed.
    Argued before VAN BRUNT, P. J., and HATCH, McLAUGHLIN, O’BRIEN, and INGRAHAM, JJ.
    George I. Woolley, for appellant.
    Terence Farley, for respondent.
   INGRAHAM, J.

The plaintiff is the owner of a piece of property on the easterly side of Hudson street, between Duane and Thomas' streets, in the city of New York, upon which there had been a brick building since the year 1854. Annexed to that building there was what was described as a covered areaway, which .extended into the street, and which appears to have had a superficial area of 114.75 square feet. This covered areaway had existed continuously since 1854. In April, 1897, the plaintiff was engaged in making repairs and alterations to this building. In carrying out these improvements, he wished to-cover the areaway with an iron cover, in which were inserted small pieces of glass. Prior to these alterations this areaway had been covered with heavy planks. In making this change the planks were removed, and a contractor for the plaintiff started to place the iron frame for the new cover, when a policeman asked for a permit from the department of public works. When no permit was produced, he said that he would arrest those that worked there, because there was no permit from the department of public works. Upon the plaintiff’s being informed of this condition, he gave to his architect a check for $229.50, to the order of the department of public works, and signed an application for a permit. This application was dated April 20, 1897, and by it the plaintiff applied to the department of public works for permission “to construct under and in accordance with the ordinances of the corporation relative to vaults, cisterns and areas, a vault in conformity with the accompanying plan in front” of the plaintiff’s premises, the said vault to be 4 feet 6 inches in width, and 25 feet 6 inches in length, outside measurement, and to occupy 114.75 square feet, at $2 a square foot, for $229.50. The said application contained the following provision :

“The party or parties procuring this permit hereby agrees to keep the pavement affected by constructing the vault in good order for a period of one year from the date of filing of certificate of the completion of the work. The certificate shall be subject to revocation thereof at any time hereafter by the Commissioner of Public Works, when in his judgment the space occupied by said vault or any portion thereof may be required for any public improvements, or for violation of the terms and conditions herein.”

Upon the filing of this application and the payment of this sum of money, a permit was given by the department- of public works to the plaintiff to construct a vault in front of the premises known as No. 44 Hudson street, used for business purposes, said vault to be 4 feet 6 inches in width, and 25 feet 6 inches in length, outside measurement, and to occupy 114.75 square feet, “subject to obligation to construct recess or chamber for existing hydrant or stopcock, as per annexed plan, and upon condition that the person or persons to whom this permit is granted will in all' respects comply with the corporation ordinances relative to vaults, cisterns and areas,” and upon the further condition that the permit gave no authority “and it is strictly forbidden to disturb, by excavation or otherwise or in any way damage or interfere with the proper use of any lamp-post,” or other fixture connected with the sewer or water system; and permission was also given to erect a bridge, not to exceed 5 feet in height above the sidewalk, and 10 feet in width, with steps leading to said bridge, to rest on the sidewalk of the adjoining premises during the construction of the vault; and by it the party procuring the permit agreed to keep the pavement affected by constructing the vault in good order for a period of one year from the date of filing surveyor’s certificate upon completion of the work; and the permit was issued subject to- revocation at any time by the commissioner of public works. Upon payment of this sum of money, and the receipt of the permit, the plaintiff completed the construction of the vault.

No statement was made to the policeman that the plaintiff was only engaged in reconstructing the cover to an areaway which had before been in existence; nor was there any claim made to the commissioner of public works or any other city authority that the plaintiff had any right to construct this vault or covered areaway, either under a permit before granted by the city, or by prescription, or upon any other grounds. All that appears is that the plaintiff commenced some construction in the street when he was stopped by a policeman, who, in effect, stated that, before any interference with the street could be allowed, he must have a permit from the proper city department; and, upon that notice being given by the policeman, the plaintiff voluntarily made an application for a permit to construct a vault under the sidewalk, presented that application to the proper city authorities, and was granted the permit upon payment of the sum fixed by the city for such permits. It nowhere appears that the space before occupied by the plaintiff extended to the whole right given by the city under this permit, or that the right acquired by the permit was not in excess of that before used by the plaintiff as a part of his building. By this permit the plaintiff has acquired a right to construct a vault in a public street, and for that purpose to use the surface of the street. There is therefore nothing to show but that the plaintiff acquired a right, by virtue of this permit, in excess of that which had been before used, and which would be a good consideration for the payment of the money for which this permit was issued. The plaintiff, having obtained this permit on payment of the $229.50 to the city on the 20th of April, 1897, and having then completed his repairs to his building, and used so much of the street allowed to be used by the permit, on the 9th .of April, 1903— nearly six years thereafter—commenced this action to recover back the amount that had been paid for the permit.

There was proof that the commissioner of public works had requested the police commissioners to prevent work being done without a permit on vaults 'in the public streets. Irrespective of the right of the plaintiff to construct a vault or areaway cover in front of his premises, it was not illegal for the police authorities to require persons disturbing the surface of the street, or constructing vaults in the street, to produce a permit or authority to thus incumber the street, before being allowed to continue the work. There was nothing to show that the city officers were informed that the plaintiff had or claimed a right in the street. The policeman said that he would arrest those engaged in disturbing the street unless they had a permit from the proper city authorities. He made no attempt to adjudicate upon the plaintiff’s right to construct this areaway, nor did the plaintiff or his contractor insist to the policeman that the plaintiff had a right to construct this vault. Under the charter and the ordinances of the city of New York, any unauthorized obstruction in the public streets, or interference with the surface of the streets, is a misdemeanor, and justifies a police officer in arresting those.engaged in committing the offense. It was the duty of the plaintiff to obtain a permit to use the surface of the street for the purpose of his building, and, if he had a right to a permit therefor without compensation, it-is to be presumed that, upon a statement of’ the facts to the proper municipal officers, he would have been granted the permit without payment. He did nothing of the kind. He signed an application for a regular vault permit, which, so far as appears from this record, he did not theretofore have, and which allowed him to construct in the street a vault which he had not before constructed. He had a right to make such an application for a permit, which would insure to him, by a formal, legal instrument, an undisputed right to use this street during the continuance of the permit, and to agree to pay therefor a sum of money; and the city had a right to issue the permit and receive the money. It cannot be said that what was granted to the plaintiff was nothing more than a right to continue a use to which he was entitled, and it cannot be said that the payment of this money to the city was without a consideration received by the plaintiff.

Nor can it be said that this payment was obtained from the plaintiff by duress. As before stated, there was no adjudication by the policeman that the plaintiff had no right to reconstruct the building as he-proposed doing. All that the policeman required was that his right to use this portion of the street should be determined by the proper authorities. It could not have been supposed by the plaintiff that a policeman was authorized to determine questions of law as to the right of the plaintiff to maintain this structure in the street. If the plaintiff had stated the facts to the commissioner of public works, and requested a permit to reconstruct this areaway, and that had been refused, and,, in order to continue the construction of the building, he had been required to pay this sum of money, a different question would have been presented. When he was informed that the policeman required that the proper city officials should grant a permit before he would be allowed to continue, he made an application to the department of public works for a permit, which was granted, and for which he paid the-consideration prescribed by the city ordinance. The plaintiff had a right to apply for a formal written permit under the charter, which would insure to him the right to use a portion of the street, in addition to the right which he claimed by prescription. No permit to reconstruct his building in the condition in which it had existed since 1854 was ever applied for or refused. No threat was ever made that, unless he paid this sum of money, he would be arrested or interfered with; and it seems to me clear that he voluntarily applied for a right which was granted him, and voluntarily paid the consideration fixed by law for acquiring such a right. He retains this permit, and claims a right under it; and under no principle with which I am familiar is he entitled, holding the permit, to recover back the consideration paid for it. Neither in his pleadings, nor upon the trial, did he offer to surrender the permit.

There is a material distinction between this case and Deshong v. City of New York, 176 N. Y. 475, 68 N. E. 880, as in that case it was proved that while the new vault was being constructed a deputy or inspector of the department of highways came to the place, stated to the plaintiff that his men must stop work, and declared that, if they continued, he would have the plaintiff and all the men who were at work, arrested, and that to avoid this arrest, and retain possession of the-property, so- that the building and its appurtenances might be completed and occupied, the plaintiff was required toi pay the sum of $914, which he did under protest. In discussing whether payment under those circumstances was a voluntary payment, the court said:

“Payments coerced by duress or unlawful compulsion may be recovered back. This coercion,' however, must be illegal, unjust, or oppressive. One of the several, and perhaps most common, instances of duress, is by threats of actual imprisonment unless the required act shall be performed. * * * If the city made the charge, and demanded its payment without authority of law, it was void; and the action of its officers in enforcing it by threats of arrest and by taking unlawful possession of the plaintiff’s property was illegal, and. payment to hyn was not so far voluntary as to prevent a recovery in this action.”

In this case there was no threat of this kind.. No inspector or official of the department of public works informed the plaintiff that he must pay this sum, or he would be arrested, nor was any possession taken of his premises. All that the policeman did was to say that the-plaintiff must exhibit his right to use the street, to avoid an arrest for an unauthorized appropriation or interference with the surface of the. street. This may be assumed to have been in pursuance of a regulation of the department of the city government having charge of the streets, providing that persons who attempt to interfere with the public streets without a permit should be arrested. This seems to be an entirely reasonable regulation to prevent encroachments upon the streets, and to require persons attempting to use a street to exhibit their right to use it. The plaintiff applied to the proper officer for a permit, which was granted to him upon the terms that he offered to pay in his* application, without any threat on the part of the municipal officer of any kind; and, so far as appears, tire only application that he ever made to any of the public officials was the application for the permit upon paying the sum of money named, which application was granted, and the permit issued. If there ever was a case in which a' payment was voluntary, this is such a case; and it seems clear that the plaintiff cannot retain the advantage which he has procured by the issuance to him of this permit, and recover back the money that he paid in consideration of its being issued.

It follows that the judgment appealed from must be affirmed, with costs.

VAN BRUNT, P. J„ and HATCH, J., concur.

McLAUGHUIN, J. (dissenting).

I dissent. The vault in question existed, without objection, so far as appears, from any one or the city, from 1853 to the time the demand' was made for the payment of the money, to' recover which this action is brought. This being so, a presumption, under the rule laid down in Deshong v. City of New York, 176 N. Y. 475, 68 N. E. 880, prevailed that it was originally constructed with the consent of the municipal authorities, and this presumption was not overcome by any proof offered at the trial. It is unquestionably true that the right of the public to the use of the streets is absolute and paramount to any other, and a presumption of consent, or even an actual consent, of the authorities to their use for private purposes, is always subject and subordinate to the rights of the public whenever required for public purposes. Here the space occupied by the vault is not sought to be taken by the city for public use, nor does the city object to the use which the plaintiff is making of it. What the city does object to is that such use shall be made of it by the plaintiff without his obtaining a permit, but the presumption is that he has already obtained a permit, and, that being so, he cannot legally be required to obtain another. People ex rel. Ziegler v. Collis, 17 App. Div. 448, 45 N. Y. Supp. 282; Deshong v. City of New York, supra.

Nor do I think it can be said that the payment made' was voluntary. After the old covering had been taken up, and while the new one was being put down, the work was stopped by a policeman, who demanded a permit, and threatened to arrest the workmen if they continued without procuring one; and in this connection it appeared that the commissioner of public works had directed that the police department be requested to prevent such work being done without a permit, and plaintiff sought to show that a formal order had been issued to this effect, but, on objection of the defendant, such evidence was excluded. The other evidence, however, was sufficient to show that the policeman who threatened the arrest was acting under the direction of the commissioner of public works. Indeed, it would seem to be hardly necessary to show that, because the Revised Ordinances of 1897 (section 319) forbid the construction of vaults without permits, and the police are charged with the enforcement of such ordinances.

For the foregoing reasons, I think the judgment appealed from should be reversed, with costs, and a new trial ordered.

O’BRIEN, J., concurs.  