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Hyland v. Anderson

48 N.Y. St. Rep. 665 Court N.Y.C.P. Decision date 1892-11-07 English

Delivered by *666 Bischoff, J.

Contents

Majority

p. 665
Josiah A. Hyland, Resp’t, v. George W. Anderson, App’lt.
(New York Gammon Pleas, General Term,
Filed November 7, 1892.)

Headnote

Duress—Accord and satisfaction.
In an action on a note the defense was that it was given under duress to obtain possession of defendant’s vessel detained under a claim for salvage. Held, that the claim-for salvage being of an unliquidated amount was 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 on; that the material inquiry was whether the note was voluntarily given, and if it was, the acceptance thereof completed the accord and satisfaction of the claim, and defendant was thereafter precluded from asserting that the amount agreed on was more than a fair and reasonable charge for the service rendered.
Appeal from a judgment of the general term of the city court of ¡New"York, affirming a judgment of that court in favor of the plaintiff, 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, payable to the order of Harriet E. Day, and endorsed and delivered by the payee before maturity to plaintiff, the defense being that the note had been procured by duress of the defendant to plaintiff’s knowledge.
Hyland & Zabriskie, for resp’t; J. Stewart Ross, for app'lt.

The case fails to show either a motion for non-suit, 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. R. Co., 45 N. Y., 628 , 632; Rowe v. Stevens, 44 How. Pr. 10 ; St. John v. Skinner, id., 198; Caspar v. O'Brien, 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 ; 7 St. Rep., 544 ; Walsh v. Schulz, 67 How. Pr., 186 ; McEteere v. Little, 8 Daly, 167 ; Rowe v. Comley, 11 Daly, 318 ; Smith v. Pryor, 16 Daly, 169 ; 30 St. Rep., 553 ; 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 ; 31 St. Rep., 948 ; Arnstein v. Haulenbeek, 16 Daly, 382 ; 34 St. Rep., 297 .

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 a 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 St. Rep., 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.

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