This action was brought to set aside a general release executed by the defendant, and to recover damages for malicious prosecution. Upon the case coming up for trial before a judge and jury, the court refused to try the case with a jury, and sent the case to the special term for trial, upon the ground that equitable relief was asked for; to which the plaintiff excepted. The case subsequently came up for trial at special term before a judge without a jury, and upon the evidence offered upon the part of the plaintiff the court dismissed the complaint; which ruling was ekcepted to, and these exceptions are the ones which are brought up by this appeal.
It appears from the evidence that the plaintiff had been arrested for embezzlement, and that while under arrest the defendant had made threats that unless the plaintiff paid him $50, and his attorney $25, and gave a general release, he would send him to the state-prison; but there is no evidence in the case upon the part of the plaintiff that he executed this release because of such threats, or that they constrained the will of the plaintiff, and induced the execution of the release. It may be that the plaintiff intended that this should be inferred, but no such evidence appears in the case presented upon this appeal. It appears to us that the absence of this class of evidence is fatal to the plaintiff’s claim. Had it been present, an entirely different case would have been presented. In the case of Dunham v. Griswold, 100 N. Y. 224, 3 N. E. Rep. 76, and Schoener v. Lissauer, 107 N. Y. 111, 13 N. E. Rep. 741, such threats, where a party is under arrest, will support the claim that a promise was obtained by duress per minas. There being no evidence, however, that these threats were the inducing cause of the execution of the release, we think the judgment appealed from should be affirmed, with costs. All concur.