#### John J. Clancy, Respondent, *v.*James E. Dutton and Others, Appellants.

Second Department,

November 27, 1908.

Shipping — contract to furnish full cargo—liability when carrier prevented full load — when payment not voluntary.

Where a contract for the transportation of stone by a vessel obligated the shipper to use the whole vessel which carried a cargo of over 300 tons, payment to be made at a certain rate per ton, and the captain prevented the shipper from loading a full cargo, he is liable only to pay the agreed rate on the number of tons actually carried.

*24Where the captain oí the vessel refused to deliver the stone on its arrival unless paid freight for a full cargo, the shipper, having paid under protest, may recover the excess, for the payment was coerced and not voluntary.

Appeal by the defendants, James E. Dutton and others, from a judgment of the Municipal Court of the city of Hew York, borough of Queens, in favor of the plaintiff, rendered on the 16th day of April, 1908.

*Edward L.*Owen, for the appellants.

*James J. Conway,*for the respondent.

Rich, J.:

On November 22, 1907, the plaintiff entered into a written contract with the captain of a schooner owned by the defendants for the transportation of stone from Quincy, Mass., to the city of Hew York, which obligated him to use the whole of the vessel with the exception of the cabin, room for the crew and for the storage of provisions, and to provide and furnish a “ cargo of stone under and on deck,” which meant a full cargo. He was to pay one dollar and thirty cents per gross ton, delivered. The carrying capacity of the schooner was from 300 to 320 tons. The only issue of fact involved is as to what took place immediately preceding the sailing of the vessel for Hew York, and this has been resolved in favor of the plaintiff. The testimony of the plaintiff’s brother is to the effect that in the late afternoon of the day before the vessel sailed its cap • tain informed him that there was stone enough on the dock to complete the loading of the vessel and make a full cargo of 300 tons; that he was going to Boston, and if plaintiff’s brother wanted him to he would hire a tugboat and sail at noon on the following day, to which plaintiff’s brother replied, *“*all right, if he had sufficient cargo, to hire the tug boat.” This is denied by the captain, who testified that plaintiff’s brother told him he would have the boat loaded that day, and directed him to get a tug; that he then informed plaintiff’s brother that the vessel was not fully loaded and could take on stone until she was lowered another foot in the water. There is sufficient evidence to sustain the finding of the municipal justice, and the question of whether or not the plaintiff was bound *25under his con tract .to furnish a cargo of at least 300 tons becomes immaterial. The captain of the vessel, having prevented the loading of more stone than was on the vessel when she sailed, limited the liability of plaintiff to the compensation of one dollar and thirty cents per ton for the number of tons actually carried. When the schooner reached the dock in Hew York the captain refused to permit any of the stone to be unloaded or removed from the vessel until the plaintiff had paid him the freight for a full cargo of 300 tons, amounting to three hundred and ninety dollars. The plaintiff thereupon advised with counsel, and was informed that the stone being in the possession of the defendants they had the right to retain it until the freight was paid. Plaintiff accordingly paid the captain, under protest, and took from him the following receipt:

> “ $390t% Long Island City, *Jan.*2, 1908.

> “ Received from Clancy Granite Work the sum of three hundred & ninety dollars Demanded as payment for cargo of stone from Quincy, Mass. Amt protested according to contract.

> “ F. J. MARTIN

> *“Master of Sch. Helena."*

The cargo weighed 208£ tons. It is contended that this payment was voluntary, and by operation of law precludes the plaintiff’s recovery. In this contention the defendants are in error. To constitute a voluntary payment the party paying must have had the freedom of exercising his will. When he acts under any species of compulsion, the payment is not voluntary; and if a party has in his possession property belonging to another and refuses to deliver such property to that other, unless the latter pays him a sum of money which he has no right to receive, and in order to obtain possession of his property the owner pays that sum, the money so paid is a payment made by compulsion and may be recovered back. *(Harmony*v. Bingham, 12 N. Y. 99, *117; Stenton*v. Jerome, 54 id. 480; *Scholey*v. *Mumford,*60 id. 498; *Baldwin v. Liverpool & G. W. S. S. Co.,*74 id. 125; *Spann*v. *Erie Boatman's Transportation Co.,*11 Misc. Rep. 680.)

The judgment, however, was erroneous to the extent of $10.83. The amount paid by plaintiff was $390. The amount he was obligated to pay was $1.30 per ton for 208-¡- tons, amounting to $270.83, *26He was entitled to recover the difference between these amounts, $119.17, but has been permitted to recover $130.

The judgment should be modified by deducting therefrom ten dollars and eighty three cents, and as so modified affirmed, without costs in-this court to either party.

Woodward, Jenks, Hooker and Gaynor, JJ., concurred.

Judgment of the Municipal Court modified by deducting therefrom the sum of ten dollars and eighty-three cents, and as so modified affirmed, without costs in this court-to either party.