
    Hyland v. Anderson.
    (New York Common Pleas—General Term,
    November, 1892.)
    In the absence of either a motion for a nonsuit or for the direction of a verdict, the sufficiency of the evidence to sustain a verdict is conceded; and the absence of an exception to a refusal to grant either motion the judgment of the trial court will not be reversed, on the ground that the verdict is against the weight of evidence.
    The sufficiency of the evidence to support a judgment, will not be considered where the case omits to state that it contains all evidence material to the questions in controversy.
    The defendant to obtain the release of his boat detained by plaintiff for the amount of an unliquidated claim for salvage, gave his promissory note for the amount. In an action upon the note, held, that the note was not given under duress, and that the claim for salvage being the subject of accord and satisfaction, defendant was precluded from claiming that the amount was unfair and unreasonable.
    Appeal from a judgment of the General Term of the City Court affirming a judgment of that court in favor of the plaintiff and entered upon the verdict of a jury, and affirming also an order denying defendant’s motion for a new trial.
    Action to recover upon a promissory note made by defendant, George W. Anderson, payable to the order of Harriet E. Day, and indorsed and delivered by the payee before maturity to Josiah A. Hyland, plaintiff, the defense being that the note had been procured by duress of the defendant to plaintiff-s knowledge.
    
      Hyland & Zabriskie, for plaintiff (respondent).
    
      J. Stewart Ross, for defendant (appellant).
   Bischoff, J.

The case fails to show either a motion for nonsuit, or for the direction of a verdict for the defendant, and the sufficiency of the evidence to sustain a verdict for plaintiff was thus conceded. Barrett v. Third Ave. R. Co., 45 N. Y. 628, 632; Rowe v. Stevens, 44 How. Pr. 10; St. John v. Skinner, id. 198; Caspar v. OʼBrien, 47 id. 80. In the absence of an exception to the refusal to grant either motion, we are without power to reverse a judgment of the City Court on the ground that the verdict is against the evidence (Schwinger v. Raymond, 105 N. Y. 648; Walsh v. Schulz, 67 How. Pr. 186; McEteere v. Little, 8 Daly, 167; Rowe v. Comley, 11 id. 318; Smith v. Pryor, 16 id. 169), and inquiry on our part as to the sufficiency of the evidence to support the judgment appealed from, is still further prevented by the omission from the case of the statement that the case contains all the evidence material to the questions in controversy. Aldridge v. Aldridge, 120 N. Y. 614; Arnstein v. Haulenbeek, 16 Daly, 382.

On the trial, defendant sought to show that he was induced to make and deliver the note in suit to secure the release of his barge, which he claimed had been seized and was being detained by the payee’s agents under a false and fraudulent claim for salvage, and in this behalf, offered testimony to the effect that the amount for which the note was given was an unfair and unreasonable charge for the services alleged to have been performed. This testimony was excluded under objection by plaintiff’s counsel, and defendant’s exceptions to these rulings are urged as error, calling for reversal.

"We are of the opinion that the testimony was immaterial, and, therefore, rightfully excluded. The claim for salvage was of an unliquidated amount, and the subject of accord and satisfaction, requiring no further consideration than the promise of one to accept and the other to give the amount agreed upon. Under the defense of duress, the material inquiry was whether or not the note was voluntarily given. If it was, the acceptance of the note by the payee completed the accord and satisfaction of her claim for salvage, and defendant was thereafter precluded from asserting that the amount agreed upon was more than a fair and reasonable charge for the services rendered. Fuller v. Kemp, 40 N. Y. St. Repr. 672, and authorities there cited.

Other exceptions to the admission and exclusion of evidence appear in the case, but were not urged on this appeal, and upon examination they prove to be without merit.

The judgment of the General Term of the court below .should be affirmed, with costs.

Bookstaver and Pryor, JJ., concur.

Judgment affirmed.  