Deshong v. City of New York

• Decision Date: 24 November 1903
• Citation: 68 N.E. 880,176 N.Y. 475
• Parties: DESHONG v. CITY OF NEW YORK.
• Court: New York Court of Appeals Court of Appeals

176 N.Y. 475

68 N.E. 880

DESHONG

v.CITY OF NEW YORK.

Court of Appeals of New York.

Nov. 24, 1903.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Maurice W. Deshong against the city of New York. From a judgment of the Appellate Division (77 N. Y. Supp. 563) affirming a judgment for defendant, plaintiff appeals. Affirmed.

Vann, J., dissenting.

Charles G. Cronin and Thomas O'Callaghan, Jr., for appellant.

George L. Rives, Corp. Counsel (Theodore Connoly and W. B. Crowell, of counsel), for respondent.

MARTIN, J.

This controversy relates to the right of the plaintiff to build and maintain a vault under the sidewalk in front of lots Nos. 54 and 56 West Third street, in the city of New York. In 1898, the buildings which had been previously erected thereon were torn down, and a new building was in process of construction. When the old buildings were removed, there was a vault under the sidewalk in front. It had existed there from the year 1876, and from a time between 1860 and 1870 there had been a small one under the sidewalk, used for storing coal, which was not connected with the building. When the plaintiff commenced to rebuild the vault by constructing new walls inside the old ones, and putting in iron beams upon which the sidewalk was to rest, the public authorities of the city refused to allow him to proceed until he had procured a written permit. The commissioner of highways, having charge of the streets, including vaults therein, decided that the plaintiff was required to procure a permit for the erection of such vault, and to pay the city therefor the sum of $914. This he paid under protest, and brought this action to recover the amount. The defendant relied upon two defenses: First, that there was no coercion or duress by the city in obtaining such payment, and therefore it was voluntary; and, second, that no permit was ever issued for the old vault, and consequently the plaintiff had no right to build a new one without a proper permit, and paying the usual compensation therefor.

The first question is whether the payment sought to be recovered was voluntary, or whether it was made under circumstances entitling the plaintiff to recover. The undisputed proof was 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. He then called two men to guard the place, and stationed a policeman there to stop the work upon the ground that the plaintiff had no permit, and would not be allowed to proceed until one was obtained. To avoid arrest, and to retain possession of the property, so that the building and its appurtenances might be completed and occupied, the plaintiff was required to pay the sum of $914, which he did under protest. Payments coerced by duress or unlawful compulsion may be recovered back. The 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. While there may be a diversity of opinion in some of the reported cases as to what circumstances are sufficient to constitute such coercion as will enable a party paying under protest to recover, still, under the facts in this case, we think it is quite apparent that the amount demanded of the plaintiff was paid under such circumstances as would enable him to recover if neither the city nor its officers had authority to charge or demand it. 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 by him was not so far voluntary as to prevent a recovery in this action. Briggs v. Boyd, 56 N. Y. 289;Scholey v. Mumford, 60 N. Y. 498;Newman v. Bd. Supervisors Livingston Co., 45 N. Y. 676,Strusburgh v. Mayor, etc., of N. Y., 87 N. Y. 452;Horn v. Town of New Lots, 83 N. Y. 100, 38 Am. Rep. 402;Matter of Home P. S. F. Ass'n, 129 N. Y. 288, 29 N. E. 323;Freeman v. Grant, 132 N. Y. 22, 28,30 N. E. 247;Talmage v. Third Nat. Bk., 91 N. Y. 531, 536;Peyser v. Mayor, etc., of N. Y., 70 N. Y. 497, 26 Am. Rep. 624;AEtna Ins. Co. v. Mayor, etc., of N. Y., 153 N. Y. 331, 47 N. E. 593. Therefore we are of the opinion that the contention of the defendant that the judgment can be upheld upon the ground that the payment by the plaintiff was voluntary cannot be sustained.

It seems to have been assumed by both parties that, if a proper permit had been previously granted, the plaintiff had a right to continue his new vault in place of the old one without an additional permit or further compensation. With this assumption we are disposed to agree, subject, however, to the condition that its continuance would not interfere with the street, or impair its use by the public. Whenever the existence of a vault would interefere with the public use of the street, the right to maintain it must be held to terminate, as the rights of individuals under such permits must be regarded as subordinate to the necessities or requirements of the public. Before entering upon the discussion of the question whether a permit had been issued for the old vaults, a brief history of the statutes and ordinances relating to the subject seems necessary, to ascertain the powers of the city and the rights of the plaintiff, so far as they are controlled by either.

So far as appears, the first legislative permission for the use of public streets in the city of New York for vaults was given by chapter 446, p. 881, of the Laws of 1857, which conferred upon the Croton Aqueduct board charge of issuing permits for street vaults. Section 24. After the passage of that act it was provided by the revised ordinances of 1859 that no person should cause or procure any vault to be constructed or made in any of the streets in the city without the permission of the Croton Aqueduct board, and that every application for such permission should be in writing, and signed by the person making the same. In 1866 the same ordinances were continued. The Croton Aqueduct board had control of this subject until the adoption of the charter of 1870 (Laws 1870, p. 366, c. 137). The latter act gave the common council power to make ordinances in relation to the construction, repairs, and use of vaults, conferred upon the department of public works the power theretofore vested in the Croton Aqueduct board, and provided that such department should have cognizance and control of street vaults. Section 21, subd. 20; sections 77, 78. In 1873 (Laws 1873, p. 484, c. 335) the common council was given power to make, continue, modify, and repeal such ordinances, regulations, and resolutions as might be necessary to carry into effect all powers then vested in, or by that act conferred upon, the corporation in relation to the construction, repairs, and use of vaults; and that act declared that the chief officer of the department should be known as the commissioner of public works, and should have cognizance and control of street vaults. Section 17, subd. 18; section 70; section 71, subd. 8. In 1880 the ordinances of the city were again revised or compiled, and provided that the commissioner of public works, on application, was empowered to give permission to construct any vaults or cisterns in the streets, provided, in the opinion of the commissioner, no injury would come to the public thereby. They forbade the building or construction of any vault or cistern without the written permission of the commissioner of public works, and then declared that every application for such permission should be in writing, signed by the person making the same, stating the number of feet of ground required, and the intended length and width thereof. In 1882 the consolidation act was enacted, and conferred upon the common council the power to make ordinances in relation to the construction, repairs, and use of vaults, etc., and provided that the department of public works should have cognizance and control of street vaults and openings in sidewalks. Laws 1882, pp. 24, 83, c. 410, section 86, subd. 17; section 316, subd. 8. Then followed the charter of Greater New York (Laws 1897, c. 378), which provides that the municipal assembly shall have power to make,...