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Opinion of the Court, per EARL, J.

pose of procuring a cancellation of the agreement and the surrender by Garrison to it of the remainder of the bonds, it entered into the agreement of August thirteenth; and the cancellation of the first agreement and the mutual release of the parties therefrom furnished ample consideration for the contract of August thirteenth. (Bishop on Contracts, § 68; Cutter v. Cochrane, 116 Mass. 408; Rollins v. Marsh, 128 id. 116; Perry v. Buckman, 33 Vermont, 7; Delacroix v. Bulkley, 13 Wend. 75; White v. Hoyt, 73 N. Y. 505; Tice v. Zinsser, 76 id. 549; McCreery v. Day, 119 id. 1; Manufacturing Co. v. Bradley, 105 U. S. 175.) In Cutter v. Cochrane, it is said: "An agreement to rescind a previous contract imports that, until it is rescinded, it is recognized by both parties as subsisting and binding. The rescinding of a previous contract containing mutual stipulations, is a release by each party to the other. The release of one is the consideration for the release of the other, and the mutual releases form the consideration for the new promise, and are sufficient to give it full legal effect."

Therefore, taking into view all the evidence, we see no reason to doubt that the contract of August thirteenth surrendering the one hundred bonds to Garrison, was based upon a sufficient consideration.

As to the second ground upon which the plaintiff bases its action, to wit., that the contract of August thirteenth was invalid because it was procured from it by duress, and that the bonds were coerced from it by a threat on the part of Garrison that he would not deliver to it any of the bonds held by him unless the one hundred bonds were surrendered to him, we have to say: A contract obtained by duress is not ordinarily void but merely voidable, and it may be subsequently ratified and confirmed. (Doolittle v. McCullough, 7 Ohio State, 299; Lyon v. Waldo, 36 Mich. 345.) In 1 Parsons on Contracts (7th ed.) 446, it is said: "A contract made under duress is not, strictly speaking, void, but only voidable, because it may be ratified and affirmed by the party upon whom the duress was practiced." In 1 Addison on Contracts (Morgan's edition),

Opinion of the Court, per EARL, J,

454, it is said: "Any agreement made under improper pressure is voidable. If a person having been constrained by duress to make a contract, afterwards voluntarily acts upon it, he thereby affirms its validity and loses the right to avoid it." In Chitty on Contracts (11th Am. ed. 273), it is said: "Clearly a contract made under duress would be available in favor of the parties suffering the duress and against the party affected by the same. And so by our law a man who has entered into a contract under duress may either affirm or avoid such contract after the duress has ceased." See, also, Bishop on Contracts (§ 278).

* * *

The facts constituting the duress were immediately known to the plaintiff and it was its duty to act promptly in repudiating the agreement which it had been induced to enter into by duress. Instead of so doing it never repudiated the agreement until it commenced this action, more than six years after the agreement of August thirteenth had been entered into and the bonds had been surrendered to Garrison; and during all that time down to the commencement of this action, it paid the semi-annual interest coupons upon the bonds. Even if it was induced to pay the interest during the life-time of Garrison by promises on his part to extend financial aid in other ways to the plaintiff, the conduct of the plaintiff was, nevertheless, a complete and express ratification of the agreement of August thirteenth. If it surrendered its right to repudiate that agreement on account of duress it should have taken its remedy by holding Garrison to the agreement he made with it for financial aid; but it continued to pay the interest upon these bonds for several years after Garrison had failed to keep the alleged promise he had made for financial aid to the plaintiff and after all efforts and negotiations in that direction had ceased. During several years prior to the commencement of this action the payment of interest upon these bonds was entirely voluntary. It thus emphatically and repeatedly acknowledged the defendants' title to the bonds, and when this action was commenced it was too late to claim that they had been obtained by duress.

Statement of case.

One entitled to repudiate a contract on the ground of duress should, like one who attempts to repudiate a contract on the ground of fraud, act promptly. (Schiffer v. Dietz, 83 N. Y. 300; Gould v. Cayuga County Nat. Bank, 86 id. 82; Baird v. Mayor, etc., 96 id. 567; Bruce v. Davenport, 3 Keyes, 472.)

There was, therefore, no error at the trial term in directing a verdict for the defendants. The essential facts upon which the defense existed were not in dispute. Our conclusion, therefore, is that it appears upon the undisputed evidence that the contract of August 13, 1881, was based upon a sufficient consideration, and that if it was obtained by duress it was subsequently ratified and confirmed.

The judgment should, therefore, be affirmed, with costs.
All concur.

Judgment affirmed.

In the Matter of the Application of the SOUTHERrn Boulevard RAILROAD COMPANY to Acquire the Right to Construct, etc. Upon an appeal from an order of Special Term confirming an award of commissioners appointed to appraise lands taken by a railroad company, the General Term reversed the order of Special Term and ordered a new appraisal before the same commissioners. Held, that the order being one in a special proceeding and not final, was not appealable to this court. (Code Civ. Pro. § 190, subd. 3.)

It appeared that the land taken was part of a highway known as the "southern boulevard," laid out under the act of 1867 (Chap. 290, Laws of 1867), which provides (§ 24) that no rails shall be laid in said boulevard except for the purpose of crossing it, and that if the legislature thereafter authorize the building of a railroad along it, nothing in said act shall be construed to affect or cut off the rights of the owners of the lands taken for the boulevard from claiming and receiving the full value of the lands taken for the road, to the same extent as if no boulevard had been laid out. The petitioner claimed that the provision as to damages was repealed by the amendment of said act in 1887 (Chap. 723, Laws of 1887). A merely nominal award was rendered to the land owners by the commissioners appointed to appraise damages; the General Term reversed the order confirming said award upon the ground that the legislature could not take away the rights reserved to the property owners under the act of 1867, without compensation. Held, that the order appealed from did not come within the provision of the Code

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Statement of case.

of Civil Procedure (§ 190, subd. 2), making, in certain contingencies, an order adjudging a statutory provision of the state unconstitutional, appealable to this court; that said provision relates only to orders in an action affecting a substantial right, and not resting in discretion. The provision of the Code of Civil Procedure (§ 1361), which declares that appeals from determinations in special proceedings are governed by the provisions of said Code, and the general rules of practice relating to "an appeal in an action, except as otherwise specially prescribed by law," applies to appeals to the General Term of the Supreme, or of a superior city court, not to appeals to this court.

Where the General Term has power to hear and decide an appeal from an order, the order it makes is within its jurisdiction, even though an erroneous reason be given for its exercise.

(Argued June 4, 1891; decided June 16, 1891.)

APPEAL from order of the General Term of the Supreme Court in the first judicial department, entered upon an order made January 26, 1891, which reversed an order of Special Term confirming the report of commissioners appointed to appraise damages, vacated the same and directed a new appraisal.

The facts, so far as material, are stated in the opinion.

John N. Lewis for appellant. This appeal is expressly authorized by the Code. (Code Civ. Pro. §§ 190, 1361; Goodell v. Jackson, 20 Johns. 693-721; Betsinger v. Chapman, 88 N. Y. 487–495; People v. Bell, 4 N. Y. Supp. 869, 870; State v. Stockley, 45 Ohio St. 304-308; In re P. P. & C. I. R. R. Co., 85 N. Y. 497, 498; In re N. Y., W. S. & B. R. R. Co., 94 id. 287-291.) An appeal from this order to this court will e for the reason that the General Term reversed the order confirming the report and appraisement, upon a ground which they were without power to consider. (In re U. L. R. R. Co., 112 N. Y. 61; H. R. T. Co. v. W. T. & R. Co., 121 id. 897; Ziegler v. Chapin, 43 Alb. L. J. 398.) The statute of 1887 (Chap. 723) is a constitutional and valid exercise of legislative power. (Louisiana v. Mayor, etc., 109 U. S. 285; Chase v. Curtis, 113 id. 452; Dartmouth College v. Woodward, 4 Wheat. 518; Fletcher v. Peck, 6 Cranch. 87; Garrison v. City of New York, 21 Wall. 196. It

Statement of case.

cannot be held that by virtue of the consummation of proceedings for condemnation and the opening of the boulevard, under the original statute, vested or contracted rights, of the nature contended for, were acquired. (Chitty on Cont. 87; Freeland v. Williams, 131 U. S. 405; Nelson v. Parish, 111 id. 716; People v. French, 1 Abb. [N. C.] 419; Cooley on Const. Lim. 358.) The opinion of the General Term is not based upon sound principles. (Redf. on Railways [5th ed.], § 17; Wood on Railways, § 5; Beach on Railways, § 23; Spofford v. S. B. R. R. Co., 4 N. Y. Supp. 388.) The contract which the General Term evolves from the act of 1867, is one which the legislature has no power to make. (Const. N. Y. art. 1, § 7.) The right of eminent domain is an inherent attribute of sovereignty. Constitutional provisions do not confer the right, although they generally surround its exercise with safeguards to prevent abuse. (Cooley on Const. Lim. 356, 357, 386; Kohl v. United States, 91 U. S. 367, 371; Searl v. School District, 133 id. 553; People v. Kerr, 27 N. Y. 211.) If it be held that the provisions of the statute of 1867, are, in any sense, a contract which the legislature had power to make, then we respectfully submit that it is a limited and conditional contract, dependent upon a contingency which has never arisen; and which, by reason of the amendment to the Constitution in 1875, can never arise. (Const. N. Y. art. 3, § 18; Tucker v. Ferguson, 32 Wall. 527 ; H. B. M. & F. R. Co. v. S. B., etc., Co., 41 Hun, 553.)

Wm. Pierrepont Williams for respondents. The order appealed from is not reviewable by the Court of Appeals. (Laws of 1884, chap. 252, § 1; Laws of 1850, chap. 140, 18; Laws of 1876, chap. 198; In re D. & H. C. Co., 69 N. Y. 209; N. Y. C. R. R. Co. v. Marvin, 11 id. 276; In re N. Y., W. S. & B. R. R. Co., 94 id. 287; Crosby v. Stephen, 97 id. 606; Code Civ. Pro. § 1300; Bergen v. Carman, 79 N. Y. 151.) It was competent for the legislature by the act of 1867, under which the southern boulevard was laid

out, to prescribe a measure of damages (upon a future con

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