Maricle v. Brooks — 21 N.Y. St. Rep. 534

Majority

p. 534

Percival Maricle, Resp’t, v. Law S. Brooks, App’lt.

(Supreme Court, General Term, Fourth Department,

Filed January 19, 1889.)

Headnote

1. Pleading—When beply not neceessary.

In an action on contract for labor and services the defendant set up a settlement and discharge as a defense: Held, that no reply was required and that the pleadings were sufficient to justify a recovery.

2. Duress—Receipt obtained by—Not a defense.

A receipt obtained by duress per minas is not a good defense to an action, on the contract.

Appeal from a judgment entered upon a verdict and from an order denying a motion for a new trial.

Edmund O'Connor, for resp’t; E. C. Moody, for app’lt.

Action to recover pay for services rendered by the plaintiff for the defendant and at his request.

It appeared upon the trial that the plaintiff entered the' employ of the defendant on the 12th day of April, 1885, and continued in such employ until March 30, 1887; and that by agreement he was to be paid twenty-five dollars per month during said term. He was paid forty-nine dollars only on account of such, service.

The defendant sought to avoid payment by showing a settlement, and produced upon the trial a receipt, signed by the plaintiff, acknowledging full payment and satisfaction for said services. The paper was executed on the 30th day of March.

Evidence was given tending to show, and the jury found,, that the plaintiff was induced to make said settlement and execute said release by duress per minas on the part of the defendant. The defendant charged the plaintiff with having embezzled and wrongfully appropriated to his own use money belonging to the former and received by the latter as his agent, and in and about the conduct of the business by him, and threatened him with imprisonment therefor. That although innocent of the offense thus charged, and declaring such innocence, through fear of imprisonment, he was induced to execute the receipt or release, nothing being paid by the defendant therefor.

We think the evidence justified the finding that the' alleged settlement was procured by fraud and duress on the part of the defendant. Foshay v. Ferguson, 5 Hill, 154 ; Haynes v. Rudd, 30 Hun, 237 . The question was one' of fact. Dunham v. Griswold, 100 N. Y., 324 .

The pleadings were sufficient to justify the recovery. The plaintiff counted on a contract for labor and services. Defendant set up a settlement and discharge as a defense. This was not a counter-claim, and required no reply.

p. 535

Upon the trial the plaintiff, to defeat the alleged settlement, showed it was obtained by fraud and duress and without other consideration.

Judgment and order affirmed, with costs.

All concur.