Schoener v. Lessauer

• Decision Date: 11 October 1887
• Citation: 13 N.E. 741,107 N.Y. 111
• Parties: SCHOENER and others v. LESSAUER and others.
• Court: New York Court of Appeals Court of Appeals

107 N.Y. 111

13 N.E. 741

SCHOENER and others

v.LESSAUER and others.¹

Court of Appeals of New York.

October 11, 1887.

Louis Marshall, for appellant.

Julius Lipman, for respondents.

RAPALLO, J.

The order of reversal in this case does not state that the judgment rendered at special term was reversed upon any question of fact. Error of law must therefore be shown to sustain the order of reversal. The court at general term, while conceding that the facts found were in other respects sufficient to authorize the judgment, place their reversal wholly upon the ground that the action was barred by the statute of limitations. This is the only error of law assigned, and none other is disclosed by the case. The action was brought by the heirs at law of Mrs. Babet Marx, deceased, to procure the cancellation and discharge of a mortgage on her real estate, executed by her in May, 1873, and duly recorded and held by the defendants. She died on the twenty-second of September, 1879. No attempt had been made in her life-time to enforce the mortgage, and on her decease it remained on record an apparent lien upon her real estate, which had descended to the plaintiffs as her heirs at law. This action was commenced on the twenty-ninth of September, 1879, to restrain the enforcement of said mortgage, and procure it to be canceled of record, on the ground that its execution had been procured by duress. The trial court found that the execution of the mortgage by the said Babet Marx had been procured by the defendants by their threats and menaces that unless she gave said mortgage they would cause her son to be sent to the state prison for the offense of larceny and embezzlement, which they charged him with having committed against them when in their employ, and for which he was under arrest and indictment on their complaint, and about to be tried; that they stated to the sister and brother-in-law of the prisoner that he could regain his freedom in no other way than by the payment of $2,000, and that, if that sum was not paid, he would certainly have to go to state prison; that, after negotiation, the defendants communicated to the mother of the prisoner, through his sister, a statement that he would be sent to state prison unless the mother would pay $1,000 in cash, and give a mortgage on the premises in question, the defendants agreeing not to harass her for the said mortgage during her life-time; that, if these terms were complied with, they would release the prisoner, if in their power; if not, he would be sent to state prison; that said Babet Marx, the mother, after a long struggle, consented to these terms, and executed the mortgage, and paid the $1,000 in cash, while under the influence of fear, terror, coercion, and duress, created by the threats of the defendants, and believing that they would be carried into execution, and the prisoner was immediately thereafter discharged on his own recognizance.

On these facts the court at special term rendered judgment directing the cancellation of the mortgage, and requiring the defendants to discharge it of record. Upon the merits this judgment is sustained by Bayley v Williams, 4 Giff. 638, affirmed L. R. 1 H. L. 200; Davies v. Insurance Co. 8 Ch. Div. 469; and is not in conflict with Solinger v. Earle, 82 N. Y. 393, or Haynes v. Rudd, 102 N. Y. 372, 7 N. E. Rep. 287. The case made by the complaint and findings was a proper one for the removal of a cloud upon the title of the plaintiffs to the real estate which they had inherited from their mother. The mortgage was...