The action is upon a promissory note given to the plaintiff by the defendant. The answer sets up a plea of duress, and the following allegations are incorporated by reference in the counterclaim: “ * * * The plaintiff through its duly qualified officers, did coerce, force and by duress and undue influence compel the defendant to execute to the said plaintiff his notes aggregating about $6,499.18, in that the plaintiff bank did then and there inform the defendant that J. L. *301Bloch, the husband of defendant’s sister, was guilty of having criminally appropriated funds of the bank and plaintiff bank threatened to arrest the said Bloch and to send him to the penitentiary, unless the defendant would execute his notes for said $6,499.18; that this defendant, believing that the plaintiff would carry out the said threats, did sign the notes for said sum to the plaintiff in order to save said Bloch from the infamy of arrest and imprisonment, and to save the defendant’s sister from the shame and mortification of the arrest of her husband, and from the loss of her sole support, which his imprisonment would entail. * * * That the making of the said notes aggregating $6,499.18 was not the voluntary act of this defendant and that the threats of the plaintiff to arrest and imprison the husband of defendant’s sister constrained the will of the defendant and thereby induced him to affix his signature to said notes. That defendant was an absolute stranger to the transactions out of which the alleged indebtedness of $6,499.18 arose; and promised the plaintiff to pay the said sum solely in consequence of the plaintiff’s threats and because of the "duress, undue influence and compulsion which the plaintiff exercised to force this defendant to so promise.”
The counterclaim continues: “ That this defendant by reason of the undue influence, duress and compulsion resulting from the said threats and the said conduct of the said plaintiff bank, has paid to the said plaintiff all of the said $6,499.18 except $1,325.00. Wherefore the defendant demands judgment against plaintiff bank in the sum of $5,174.18, together with the costs of this action.”
The plaintiff demurred to the counterclaim for insufficiency. The appellant in support of the demurrer claims that an action to recover money paid under duress of threat can only be maintained by the person against whom the threat is directed, or by a person related to him as a husband and wife, parent or child, or other close blood relationship. At common law the only person that could maintain such an action or interpose the duress as a defense was the person whose liberty or safety was threatened. The courts have, however, continuously extended the exceptions to this common-law right; first to a husband or wife; then to parent or child; then to brother or sister. There is no case in this State that I *302have been able to discover further extending the exceptions, nor do I find any case where the question was directly involved, denying the right to others besides those above mentioned.
In the case of Solinger v. Earle (82 N. Y. 393), relied upon by Mr. Justice Greenbatjm as definitely limiting the exceptions to those above mentioned, it is to be noted that whatever was said by the court on the subject of the persons who could maintain an action to recover money paid under duress is by way of argument and not any part of the principles governing the decision of the case. There was no question of duress in the case, as the court said (p. 399): “ So far as the complaint shows he was a volunteer in entering into the fraudulent agreement. It is not even alleged that he acted at the request of the debtor. And in respect to the claim of duress, upon which Smith v. Bromley was decided, we are of opinion that the doctrine of that and the subsequent cases referred to can only be asserted in behalf of the debtor himself, or of a wife or husband, or near relative of the blood of the debtor, who intervenes in his behalf, and that a person in the situation of the plaintiff, remotely related by marriage, with a debtor, who pays money to a creditor to induce him to sign a composition, cannot be deemed to have paid under duress, by reason simply of that relationship, or of the interest which he might naturally take in his relative’s affairs.” (Italics are mine.) Historically and argumentatively this statement was entirely accurate; the cases cited were early English cases, with the exception of one early Massachusetts case, and the court held merely that in the absence of threat or other duress, the plaintiff’s claim could not be based simply upon relationship. This certainly cannot be considered an authoritative decision that where the other elements of duress are present, a brother-in-law of the person against whom the threats were directed could not avail himself thereof either by way of defense, or of affirmative action.
In other jurisdictions, however, the exceptions have been extended to grandmother and grandson (Bradley v. Irish, 42 Ill. App. 85); granddaughter and grandfather (Kirby v. Arnold, [Ala. 1915] 68 So. Rep. 17); sister and brother (Schultz v. Catlin, 78 Wis. 611); aunt and nephew (Town of Sharon v. Gager, 46 Conn. 189); uncle and nephew (Seear v. Cohen, 45 L. T. [N. S.] *303589); father-in-law and son-in-law (Nebraska Mutual Bond Assn. v. Klee, 70 Neb. 383); mother-in-law and son-in-law (Fountain v. Bigham, 235 Penn. St. 35); and friends (Davies v. London & P. Marine Ins. Co., L. R. 8 Ch. Div. 469). This latter case shows how much the English courts have extended the exceptions beyond the cases cited in Solinger v. Earle (supra). The modern rule to which, in my opinion, we should give effect, therefore, would not seem to rest upon the closeness of relationship, but upon the fact whether considering the surrounding circumstances such as age, sex, capacity, situation and relation of the parties, the threat is sufficient to overcome the mind of a man of ordinary courage, it being sufficient to constitute duress that one party to the transaction is prevented from exercising his free will by reason of the threats. The payment of money, to which the party has no legal claim, made under duress of such threats, is not the voluntary act of the payor, and can be recovered back.
When we consider that the action to recover money paid by reason of coercion, threat, compulsion or undue influence is an action to recover money received, to which the defendant was not entitled, and which in equity and good conscience he should not be allowed to withhold from the payor, and, therefore, the law implies a promise on the part of the payee to repay it, it would seem that money wrongfully obtained from any person under such circumstances could be recovered, if the coercion or undue influence as a matter of fact actually existed. As was said in Barry v. Equitable Life Assurance Society (59 N. Y. 587, 592): “ But where there exist coercion, threats, compulsion and undue influence there is no volition. There is no intention nor purpose, but to yield to moral pressure, for relief from it. A case is presented more analogous to a parting with property by robbery.”
In the present case the defendant alleges and by demurrer the plaintiff admits that the plaintiff did coerce, force, and by duress and undue influence compel the defendant to execute the notes by threats which are stated, and that the defendant beheving that plaintiff would carry out the threats did sign the notes, and that by reason of the undue influence, duress and compulsion resulting from said threats has paid all of said notes except $1,325.
*304The plaintiff does not claim that the defendant was under any legal or moral obligation to pay the money, and admits that by threats it extorted the money from him. It may be, if the issue were tried, that facts .would be adduced that would tend to show that defendant was not actuated by fear of the threats, or that the relations of the defendant with his sister and brother-in-law were such that there would have been no compulsion in the threats. But here the fact of compulsion is admitted. I, therefore, am of opinion that the counterclaim was available to this defendant.
The second contention of appellant is that the counterclaim in effect alleges the compounding of a felony. In order to so hold it is necessary to imply two things: First, that the charge made by the plaintiff’s officers was true; and second, that they agreed in consideration of the giving of the notes not to prosecute Bloch, or to withhold from the authorities the evidence of his felony.
It is now well settled that on a demurrer to a pleading the pleading must be liberally construed in favor of the pleader, and that a demurrer for insufficiency can only be sustained when it appears that admitting all the facts alleged or that can by reasonable and fair intendment be implied from them the counterclaim fails to state a cause of action.. (Coatsworth v. Lehigh Valley R. Co., 156 N. Y. 451, 457; Tew v. Wolfsohn, 174 id. 272, 274.) The learned counsel argues that as it is not alleged that plaintiff’s statement to him that Bloch “ was guilty of having criminally appropriated funds of the bank ” was false, the intendment is that it was true. In this he overlooks the fact that the counterclaim is not to recover money paid in reliance upon false and fraudulent representation, but to recover money paid under duress and undue influence. He further contends that it must be implied that the plaintiff agreed to refrain from prosecution. In my opinion such a construction violates not alone the rule of liberal construction above stated, but also the rule that the presumption is that the parties did not intend to commit a crime, and if there are two possible inferences to be drawn, one of which would lead to criminality and the other to innocence, the latter must be given effect. It is not alleged that Bloch had committed a crime, but that the plaintiff’s officers stated *305that he had; nor is there any allegation that the plaintiff’s officers agreed, nor can it be.implied that they agreed to forbear to prosecute Bloch, and in consideration of that promise the notes were given.
In regard to a plea that a bond was given to compound a felony, it has been stated in a well-reasoned opinion by Judge Cowen, writing for the Court for the Correction of Errors, that it must allege either that a criminal prosecution had been instituted and an agreement made to stop or in some way embarrass the prosecution, or if no prosecution had been instituted, but a felony or other crime had been committed, the party knowing the fact takes a promise or obligation in consideration of forbearing to prosecute. In the first case the truth or falsity is not material; for the public have an interest that such prosecution should be carried on to conviction or acquittal. In the second, unless a crime has been committed, the public have no interest in the matter. The most that can be said is that statements were made which if true showed that a felony had_ been committed, and defendant had notice thereof. The opinion then continued: “ If the notice be false, it is indeed no more than a stipulation concerning his civil rights. No mischief is done; and a naked intent to do it, however exceptionable in morals, is not tangible by the municipal law. When a crime has in fact been committed, there is more than an intent. The transaction may then result in a public mischief.” (Steuben County Bank v. Mathewson, 5 Hill, 249, 252 et seq.)
The cases of Catskill National Bank v. Lasher, No. 1 (165 App. Div. 548; affd., 221 N. Y. 551) and Haynes v. Rudd (102 id. 372), on which Mr. Justice Smith relies, are clearly distinguishable from the instant case. Neither of those cases arose upon the pleadings, but the question involved was the sufficiency of the proof of the agreement to compound a felony. In the Catskill Bank case the defendants knew that their names had been forged as indorsers on the note discounted by the bank; the defendants knew that a constable was waiting outside their residence with a warrant for the arrest of their son and brother respectively. After the guaranty was given the warrant was returned to the justice of the peace who *306issued it, and the information and warrant were thereupon destroyed. The court held that these facts were sufficient to establish an agreement to compound a felony. In the Haynes case the judgment was reversed and a new trial granted because of the refusal of the trial justice to charge as requested, " that if the compounding of a felony entered into and formed a part of the consideration of the note, the plaintiff could not recover,” and also “ that if the motive of the plaintiff in giving the note was in part for the purpose of compounding a felony, he would not be entitled to recover.” The court held this was error, stating: “ Within the rule already laid down, if the consideration of the note was in any way affected by the compounding of a felony, or it entered into the same, or such a motive actuated the plaintiff in any respect, then the contract was illegal, and should not be upheld.” The rule adverted to had been theretofore stated as follows: “ Whether the parties stood in pari delicto depends upon the fact whether the evidence proved that the note in question was given for compounding a felony. If the testimony established that such was the case, then both parties must be regarded as equally in fault, and the court will not lend its aid to either in enforcing a contract of such a character because it is illegal and void.” The radical distinction between the instant case and the Haynes case is that here, without allegation of a fact tending to show an agreement to compound a felony, the court at Special Term held that on a demurrer all the facts necessary to constitute such a defense may be inferred and judgment given on such inference as a matter of law, while in the Haynes case, with all the facts in evidence, it was held to be a question of fact for the jury.
In my opinion it cannot be held that the counterclaim shows that there was an agreement to compound a felony. If such is the fact, if the plaintiff’s officers knew that Bloch had committed a felony, and made an agreement to compound it in consideration of the defendant’s giving the notes, it will be a good reply to the counterclaim, and if proved will defeat defendant’s recovery. The defendant is not required. to negative a possible defense to the counterclaim.
In my opinion, the order overruling the demurrer should be affirmed, with ten dollars costs and disbursements, with *307leave to the plaintiff to withdraw the demurrer and to reply within ten days on payment of said costs and ten dollars costs awarded to defendant by the. order appealed from.
Dowling, J., concurs.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.