#### Robert J. Mahoney, Respondent, *v.*The City of New York, Appellant.

First Department,

July 7, 1911.

Municipal corporations — vaults under street, city of New York — right to. construct new vaults in place of old ones which have been licensed — license subordinate to rights of public — evidence — failure to show license to maintain vaults — when no duress by city in refusing license until fee is paid.

Where the city of New York has never given a license for the construction of vaults under a public street pursuant to the statute authorizing it to license such vaults; it may demand a fee for their maintenance no matter • how long they have been in existence.

But if a license for vaults has been granted, the owner of the land when desiring to enlarge the vaults has a right to build new vaults in the space formerly occupied by the old without an additional permit or the payment of an additional fee, provided the continuance of the vault does not interfere with the street or impair its use by the public.

As the city holds the streets as trustee for the public it has no power to grant any right or permission to occupy any part thereof if it interfere with the public use, and any license to do so is given and accepted with an understanding that it is subordinate to the public rights.

Any presumption that an owner who has maintained vaults under the streets of the city of New York for fourteen years Without objection did so under a municipal permit is overcome if the municipal records do not show that a permit was ever granted, for under the statute and the city ordinance there must be a written request for permission to construct such-vaults.

Evidence examined, and *held,*■ insufficient to show that vaults under streets in the city of New York were constructed prior to 1867, at which dat,e the city was authorized by statute to issue permits for street vaults. Where a'contractor who had agreed to rebuild and enlarge vaults already existing under the city streets on being denied a license to,construct new.vaults in the space occupied by the old unless the license fee were paid — the city contending that the former vaults were illegally maintained-^ paid the fee under protest in order to brake timely completion of his work, it was a voluntary payment and cannot be recovered of the city on the theory that it was extorted by duress if he were not arrested or threatened with arrest.'

Appeal by the defendant, The City, of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on *885the 27th day of December, 1910, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 23d day of December, 1910, denying the defendant’s motion for a new trial made upon the minutes.

*Loyal Leale,*for the appellant.

*Jeremiah T. Mahoney,*for the respondent.

McLaughlin, J.:

Action to recover $1,533, paid by the plaintiff to the city of New York for the privilege of constructing vaults under a public street, on the ground that such payment was involuntary and under duress and protest.

The plaintiff in May, 1904, entered into a contract with the owner of certain real estate, situate at the comer of Hudson and Van Dam streets in such city, to remove old buildings therefrom and erect a new one thereon. .The contract also called for the construction under the sidewalk, adjacent to the building to be erected, of vaults covering over 2,000 square feet, and the payment by the contractor of all license fees required by the city for that purpose. There were vaults under the sidewalk adjacent to the old building covering 1,533 square feet, and the contractor applied for a license to construct vaults in the additional space required by his contract. The city refused to issue the license unless the entire space were paid for,' on the ground that permission had never been given by the city to construct the old vaults, for which reason their - maintenance was illegal. The contractor paid the entire amount' called for in order that he might complete his contract with the owner within the time specified, protesting, however, against the payment required for the space occupied by the old Vaults, and, upwards of five years after the payment was made, brought this action to recover the amount thus paid. At the conclusion of the trial the court directed a verdict for the plaintiff for the amount paid, together with interest thereon from the date of payment, upon which judgment was entered, and the city appeals.

If a license had never been issued for the construction of the *886old vaults, then the city rightly demanded a fee for the space they occupied, and this irrespective of the length of time they had been in existence. If, however, a proper permit had been previously granted for the construction of the old vaults, then the owner of the land had a right to continue, the new vaults in such spaces without an additional permit, or paying compensation therefor, provided that the continuance did not interfere with the street or impair its use by the public. *(Deshong*v. *City of New York,*176 N. Y. 475.) The title to' the street being in the city as trustee for the public, it has no power, to grant any right, or give any permission to occupy ally part thereof, if such occupation interferes with the public use. The public’s right to use the street as such is. absolute and Superior to any other, and whenever permission is given to occupy a public street or any part of it for a private purpose such occupation is given and. accepted with the distinct understanding that it is subordinate to the rights of the public. It is not claimed that the occupation of the vault space in question in any way interferes with the public use, so that the real questions presented are (1) Had permission been given by the city to build the old Vaults? and (2) if so, was the payment involuntary and compelled by duress *%*

No proof was offered at the trial that a permit had ever been issued for the construction of the old vaults. It was, however, admitted by the defendant at the opening of the trial that such vaults had been in existence for fourteen years prior' to the time the payment in question was made, and although it did not appear that the city either knew of the construction or did not object to the use, this doubtless was some evidence from which the city’s consent to the construction and; use might reasonably be inferred. *(Babbage*v. *Powers,*130 N. Y. 281; *Jorgensen*v. *Squires,*144 id. 280.) In order to overcome this presumption the defendant showed that by section 24. of chapter 446 of the Laws of 1857 the city was authorized to issue permits for street vaults; that such authoritydias been continued to the present time; that by an ordinance of the city since 1859 application for permission to..construct-vaults had to be made.in writing, and signed by the person making the same, and that .there was nothing in its records indicating that a permit, had *887ever been granted for the construction of the old vaults. The presumption that existed by reason of use without objection that a permit had been issued was completely overcome by this proof. This the plaintiff recognized and he endeavored to prove the existence of the vaults since 1849, by showing that the old buildings which were tom down had been upon the premises since that date; and he attempted to prove that the vaults were constructed at the same time the buildings were, but his proof in this direction completely failed to establish that fact. The only witness who testified upon that subject stated that the cellar walls of the building and the walls of the vaults were both built of stone “rough rubble work,” and where the vault walls intersected with the walls of the cellar they were “interlocked and bonded into, each other; ” and in his opinion both walls were built at the same time, with the exception of the walls of a certain oven, which seemed to have been a part of the vault walls; as to the wall of the oven he admitted he could.not form any opinion as to when it was built and there was nothing to indicate to him that it was built at the same time as the others. His testimony falls far short of establishing that the vaults were built prior to 1857 and a finding to that effect would be without sufficient evidence to support it. His opinion, at most, is the merest conjecture.’

But, even if it be assumed that the use of the vaults for the time stated without objection on the part of the city were sufficient upon which to base an inference that a permit was given, I do not think in that case that the plaintiff was entitled to recover. No evidence was offered that the payment was made because of duress or coercion on the part of the defendant; in other words, the proof shows that it was a voluntary payment made by the plaintiff. *(Wolff v. City of New York,*92 App. Div, 449; affd., 179 N. Y. 580.) Plaintiff could not recover in any event without establishing that the payment was involuntary and made under duress. He was not arrested, nor was he threatened with arrest. All that was done on the part of the officials of the city was to refuse to issue a permit for the additional space unless a permit were taken for the entire space required. The plaintiff acquiesced in this and *888paid the amount demanded for the entire space. It is true he paid, under protest, the amount required by the city for the space occupied by the old vaults, but that did not establish coercion, nor did. it show that the money was not voluntarily paid. *(Wolff*v. *City of New York, supra; Flower*v. *Lance,*59 N. Y. 603.)

It is suggested m the respondent’s brief that the answer admitted that the payment was involuntary and made under duress. I do not think the answer is subject to this criticism, when the whole of it is read and construed in connection with the 11th paragraph, the allegations of which are at most conclusions.

■ It follows that the judgment appealed from must be reversed and a new trial ordered, With costs to appellant to abide events

Ingraham, P. J., Laughlln, Miller and Dowling, JJ., concurred: •

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