#### The People of the State of New York ex rel. Michael Short, Respondent, *v.*The Warden of the City Prison, Defendant. The People of the State of New York, Appellant.

First Department,

July 7, 1911.

Crime — extortion — compelling' workman to pay money by threat of discharge —¡ Penal Law, section 850, construed.

One who, having procured another employment asa painter, compels him to pay over a portion of his wages by a threat to procure his discharge if he do not do so, is guilty of extortion as defined by sections 850 and 851 of the Penal Law.

The word “property” as used in section 850 of the Penal Law embraces every species of valuable right and interest — the right to labor is property within said section.

Appeal by the People of the State of New York from an order of the Supreme Court, made at the New York Special Term- and entered in the office, of the clerk of the county of New York on the 1st day of February, 1911, sustaining a writ of habeas corpus and discharging the relator from custody.

*Robert 8. Johnstone,*for the appellant.

*Benjamin Rich,*for the respondent.

*862McLaughlin, J.:

The relator was charged before a city magistrate, in a veri-, fied written complaint, with the crime of extortion. The . complaint alleged in substance that on July 8, 1910, the relator secured, without consideration, a position for the complainant as a painter with the George A.. Fuller Company, building contractors; that after he had secured such position, and the complainant had entered upon his employment, the relator stated that he would have to give him fifty cents a day from his weekly salary,- and, if he did not do so, he would have him discharged; that, by reason of such threat to discharge, the complainant paid to the relator on the eighteenth of July two dollars and seventy-five cents, and thereafter gave him a similar sum for six successive weeks, being each time threatened with discharge unless he made such payment; that on the 29th of August, 1910, the sum of two dollars and seventy-five, cents was again demanded, which the complainant refused to pay,' and a few days later he was discharged. Upon this complaint a warrant was issued, the relator arrested, and subsequently committed for examination to the city prison on the charge of having committed the crime of extortion. . He then obtained from the Supreme Court a writ of habeas corpus, directed to the warden of the city prison, who made a return setting forth the commitment as the cause of detention. The relator traversed the return, setting forth in substance that the magistrate was without jurisdiction to make the commitment, for the reason that the facts set out in the complaint did not show the commission of any crime. The mattér subsequently came on for a hearing before. a Special Term of ■ this court, and resulted in an order sustaining the writ. . The district attorney Of the county of New York, in the name of the People of the State, appeals from the order.

The statute authorizes such an appeal. (Code Civ. Proc. § 2059.) The learned justice sitting at Special Term, as appears from his opinion, reached the conclusion that “employment” was not property, and for that reason the facts set out in the complaint, upon which the relator was arrested, did not constitute the crime' of extortion. This conclusion was based upon the construction which he put upon sections 850 and 851 of *863the Penal Law. Section 850 defines extortion as *“*the obtaining of property from another, with his consent, induced by a wrongful use of force or fear, or under color of official right,” and section 851 defines what threats may constitute extortion as follows: “1. To do an-unlawful injury to the person or property of the individual threatened. * 1⁄8 '3⁄8 ”

I am of the opinion that the construction which the learned justice put upon the word “property,” as used in these sections, is too narrow. The word, as here used, is inténded to embrace every species of valuable right and interest, and whatever tends in any degree, no matter how small, to deprive one of that right, or interest, deprives him of his property. There are numerous authorities holding that labor constitutes property. If labor constitutes property, then it seems to me to necessarily follow that the right to labor must also constitute property, and whatever deprives him of his right deprives him of property. *(State*v. *Cadigan, 73*Vt. 245; *Matter of Parrott,*1 Fed. Rep. 481; *Gillespie*v. *People,*188 Ill. 176.) If this conclusion be correct then the relator, upon the facts set forth, was clearly guilty of the crime of extortion.

In principle I do not think the case can be distinguished from *People v. Barondess*(61 Hun, 571; 133 N. Y. 649) and *People*v. *Weinseimer*(117 App. Div. 603; affd., 190 N. Y. 537). In the *Barondess*case the complainants were a firm of cloak manufacturers. Their employees, being dissatisfied with the wages received, quit work. They subsequently agreed to return, but were under no contract to do so, being employed merely by the day. They did not return at the time they said they would, and upon the firm’s inquiring of the defendant the reason therefor, he said they would not return until he had been paid $500. This sum he finally reduced to $100, which was paid and then the employees went back to work. Defendant was convicted of the crime of extortion; the conviction was reversed by the late General Term, Daniels, J., dissenting; and on appeal to the Court of Appeals the order of the General Term wasi reversed and the judgment of conviction affirmed on th« dissenting opinion.

In the *Weinseimer*case the defendant was connected wi« a plumbers’ union. The employees of a contractor on a bujj^ *864ing in the process of construction quit work and the defendant told the contractor that unless he were paid the sum of $3,000 the men would not return to work. The money was paid and the employees returned. It was held that the defendant was properly convicted of the crime of extortion.

Here the complainant was a painter. Painting was as much his business-as the manufacture of cloaks was that of the complainant in the *Barondess*case or the installation of plumbing in the *Weinseimer*case. “Business” has been defined as “that which one does for a livelihood; occupation; employment.” (Century Dictionary.) The complainant, at the time the threat was made, was conducting his business, which was painting’ for the Fuller Construction Company, for the wages paid therefor. The threat of the relator to have him discharged was a threat to injure his business because, if carried out, it prevented his selling his labor to the Fuller Company, which would constitute an injury to his property. If, in his business of painting, he had employees working for him, and the relator threatened to prevent such employees returning to work unless he was paid a sum of money, then the case would fall directly within the *Barondess*case. How can it he said that a threat to have him discharged is any less an injury to property in this case than it would he in that? Where is the distinction that makes it extortion in the one case and hot in the other ? Obviously, as it seems to me, there is no distinction. In eabh case "the threat interferes with one’s business. The relator threatened to have the. complainant discharged unless he paid him the amount of money demanded. The complainant parted with his money by reason of such threat. This made the relator guilty of extortion under the ■ sections of the Penal Law before quoted.

The order appealed from, therefore, is reversed, the writ dismissed, and the prisoner remanded.

k Ingraham, P. J., Clarke, Scott and Dowling, J-J., concurred.

Order reversed, writ dismissed and relator remanded.