Siegel v. Arken , 104 N.Y.S. 778 ( 1907 )

GILDERSLEEVE, P. J.

The plaintiffs in this action sought to recover the agreed' price paid by them to the defendant for the manufacture of 83 coats out of material furnished by the plaintiffs, upon the theory that, after the material had been delivered to the defendant, the plaintiff’s, being in urgent need of the coats, made a demand upon the defendant for them; that he refused to deliver the same to the plaintiffs, unless he was first paid the full agreed price for the making of the same, although a large number was still unfinished; and that to obtain 1he goods they were compelled to pay said full agreed price. Subsequently they were compelled to procure 67 of the coats to be completed by other tailors at a cost of $1.35 per garment. They recovered a judgment for $90.45, the costs of completing garments, and for $25 paid to the defendant in advance on the work.

The complaint was verified, and set forth a cause of action for duress of property and money paid to obtain its possession. Without passing upon the question as to whether or not the Municipal Court has jurisdiction of an action for duress of property under the circumstances disclosed by the evidence herein, we are of the opinion that this judgment should be reversed for two reasons:

First, the evidence fails to show duress. There is no testimony showing that the coats were made for any special purpose or to supply any immediate demand, or that it was specially necessary that the plaintiffs should have the immediate possession of the coats for any reason at the time they made the demand upon the defendant for their return, and it is not shown that the retention of the coats by the defendant for a longer time would have in any way inured to the damage of the plaintiffs. The general statement by the plaintiffs that “we had to have the goods immediately,” or that “we did not replevin the goods, as it would cost too much money,” is insufficient to show duress. That there was no pressing need for the coats is shown by the fact that after the plaintiffs received them they placed them in the hands of two other tailors for completion, one of whom took two weeks to finish the number given him.

Second, there is no evidence whatever as to when the defendant was to complete the work. For all that appears, the plaintiffs demanded the return of the goods before the expiration of the agreed time in which the defendant had to do the work, or before a reasonable time had elapsed between the time the material had been furnished him and the time of the demand for its return in a completed state. The evidence given fails to sustain the allegations of the complaint, and the judgment should be reversed.

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

FITZGERALD, J., concurs.