¶1Two insuperable legal barriers should bar this court from considering whether the defendant was at the close of the trial entitled to judgment:
¶2First. The defendant did not move at the close of his testimony or at the close of the case for the dismissal of the complaint or the direction of a verdict in his favor. The legal effect of that omission was recently stated by this court inPollock v. Pennsylvania Iron Works Co. (157 N.Y. 699) as follows: "The legal effect of the omission of the defendant at the close of the testimony to move either for a dismissal of the complaint or the direction of a verdict in its favor was to consent to the submission of the case to the jury. We are, therefore, prevented from considering whether the defendant was entitled to judgment." (See, also, Hecla Powder Co. v. SiguaIron Co.,157 N.Y. 437, and the later case of Hopkins v.Clark,158 N.Y. 299, where the authorities upon this branch of the practice were considered and the reason for the rule adopted by this court given.)
¶3Second. The Appellate Division has unanimously affirmed the judgment entered upon the verdict of the jury, which was not directed. That the recent amendment to the Constitution of this state in such a situation deprives this court from considering whether a defendant was entitled to judgment has been often held by this court. It has been said in the discussion of the question that this court cannot review the ruling of a trial court in denying defendant's motion for a nonsuit even "if it be true that the trial court erred in holding that the evidence was sufficient to require the submission of the case to the jury and the Appellate Division was wrong in deciding that the evidence sustained the verdict." (Szuchy v. H.C. I. Co.,150 N.Y. 219,222.) "We have no power to examine the record even to see if there is any evidence to *182 sustain the verdict." (Amherst College v. Ritch,151 N.Y. 320. ) "We are compelled by the Constitution and the statute to presume that there was sufficient evidence to sustain the facts found by the jury." (Ayres v. D., L. W.R.R. Co.,158 N.Y. 254,257.) "The purpose and effect of the Constitution is to prohibit this court from in any case reviewing the question whether there is any, or sufficient, evidence to sustain a decision or undirected verdict, where there was a unanimous affirmance by the Appellate Division." (Reed v. McCord,160 N.Y. 330, 337.) "The question whether a finding of fact, or a verdict upon issues of fact, is sustained by evidence, though in its very nature one of law, is not reviewable here, when the court below has decided unanimously that the judgment should be sustained. This one question of law has, therefore, in such cases, been withdrawn from the cognizance of this court, as well as all questions of fact." (Marden v. Dorthy,160 N.Y. 39,45.) This court is "required to assume in such a case that the evidence was of such a character as to justify the submission of the disputed question to the jury. It is quite true that the question whether there is any evidence tending to prove a fact is one of law …" but "the effect of that limitation upon the power of this court to review the unanimous decision below that there was evidence to sustain the verdict is to withdraw a particular question of law, which was formerly reviewable here, from our jurisdiction." (Meserole v. Hoyt,161 N.Y. 59, 61.) "We cannot review the facts or even look into the record to see whether they are supported by evidence or whether some other facts should be supplied." (Farleigh v. Cadman,159 N.Y. 169,175.) To the same effect is Lewis v. L.I.R.R. Co. (162 N.Y. 52), and Kleiner v. Third Ave. R.R. Co. (162 N.Y. 193), in which cases appeals to the Court of Appeals were allowed, in the first by the Appellate Division and in the last by a judge of this court.
¶4The complaint alleges that the defendant was financially distressed with creditors pressing him for payment but with a considerable stock of goods on hand which he feared "would *183 be sacrificed in efforts of said creditors to realize their claims and leave nothing for the defendant. That, thereupon, the plaintiff informed the defendant that he believed he could take said property and carry on said business, and therefrom, after paying all expenses, within a reasonable time pay all said debts and have a considerable surplus or residue after paying said claims. That, thereupon, it was agreed between the defendant and the plaintiff that the defendant would pay to the plaintiff 15 per cent of said residue, estimated at an inventory appraisal made, up to $5,000, and 10 per cent upon all residue or surplus over and above said $5,000, and in addition to all other compensation or fees, if the plaintiff would take said property and conduct said business until all defendant's debts and liabilities should be paid or satisfied. That, thereupon, and in consideration thereof the plaintiff took said property and carried on said business and paid all the expenses and debts of the defendant, and performed all things by him to be done." The trial resulted in a verdict in favor of the plaintiff for the amount claimed by him and the judgment entered thereon has been unanimously affirmed by the Appellate Division.
¶5It is contended that a certain written agreement introduced in evidence by the plaintiff is against public policy and void. Without at all consenting to that contention, but assuming for the sake of argument that it may be so, we cannot hold that the defendant was entitled to judgment, for, as we have seen, we cannot even look into the record to see whether the verdict is supported by evidence nor whether there is any or sufficient evidence for we are bound "to presume that there was sufficient evidence to sustain the facts found by the jury." It is difficult to understand a process of reasoning by which the conclusion is reached that, while we cannot look into the record to see whether there is any evidence to support a finding by the jury, but must presume that there was ample evidence for that purpose, still, if we do look and find some evidence, we may condemn it as worthless and then hold, notwithstanding the unanimous affirmance of the Appellate *184 Division, that the defendant was not entitled to judgment and reverse it. I shall content myself with the mere statement of the proposition, for it seems very clear that it furnishes its own answer, and observe in passing that there would have been no opportunity for discussion of the effect of a unanimous affirmance by the Appellate Division had the record contained no evidence, but it has been insisted that when the record contains evidence the quality of it may be considered, and if found insufficient to support a judgment, it can be assumed that there is no other evidence in its support, and the judgment may, therefore, be reversed despite the command of the Constitution as construed by this court. The decisions furnish the answer to this contention, if it do not carry the answer on its very face, when they deny the right of this court to look into the record to see whether there is any evidence to support a verdict, or, if there is any evidence, whether it be sufficient evidence for that purpose. Here there was evidence; its effectiveness only is challenged.
¶6The only questions of law, therefore, that can come before this court on this review must be presented by exceptions taken to rulings of the court in admitting or rejecting evidence and to the charge of the court. (Ayres v. D., L. W.R.R. Co.,158 N.Y. 254, 258.) And exceptions to the charge, which present merely the question whether or not there was evidence to warrant a finding or a verdict, cannot be considered, for it but presents in another form the question of law disposed of in the determination of the court to submit the case to the jury. That question was before this court in Cronin v. Lord (161 N.Y. 90) where the court was requested to instruct the jury that there was no evidence whatever of fraud or duress, and this court, in holding that the refusal of the court to so charge could not be reviewed in this court, the Appellate Division having unanimously affirmed the judgment entered on the verdict of the jury, said: "It is not reviewable in this court whatever may be the form of the exception, whether to a ruling submitting the case to the jury, refusing a nonsuit, or to a charge that there is or is not evidence, as the case may be, *185 to warrant a finding or verdict on the disputed questions of fact."
¶7There were but three exceptions taken either to the charge as made or to the refusal of the court to charge as requested by the defendant. The first request was that the jury should be instructed that, if the general assignment was accepted by the plaintiff with the understanding at that time he was to perform all the duties contemplated by the contract of May 24, 1894, then that contract was without consideration. The court declined to vary its charge in that respect, and an examination of the main charge discloses that the court had already fully and fairly instructed the jury in relation to that question. The court, after instructing the jury generally as to the memorandum of agreement, submitted to them whether "in entering into it the parties contemplated and intended to agree to start out to do something more than the mere legal requirements upon the assignee in carrying out the administration of the assigned estate in ordinary cases? If you so find upon the whole evidence in the case that the agreement does provide for more than was the duty of the assignee, then I charge you that it was such an agreement that the parties might properly enter into and provide for; that the defendant in this case would be responsible then for the compensation which he had agreed should be paid to the plaintiff. If, on the other hand, you come to the conclusion that nothing more was contemplated by this agreement than simply adding to the legal fees, then the plaintiff in this action cannot recover, and your verdict must be for defendant." The only other request to charge related to the same general question and need not be referred to, as it was fairly covered by that portion of the charge of the court to which reference has already been made. It should be observed, perhaps, that in the very able brief of the counsel for the appellant it is not claimed that the court erred in its refusal to charge as requested or that the only exception taken to the charge in chief presents error. *186
¶8We come now to the consideration of the only exceptions which are the subject of review on this appeal upon which the appellant relies for reversal of the judgment. The plaintiff was allowed to testify to certain conversations with the defendant preceding the written agreement of May 24, 1894, and out of which, perhaps, the written agreement grew. The appellant insists that the effect of this evidence was to contradict or alter the written agreement, and, therefore, it should not have been received. If such were its effect, then his position is well taken and the judgment should be reversed. It is true that all of the conversation between the parties did not find its way into the writing which is supposed to express their final agreement, but no part of these conversations either add to or take from the contract. To illustrate: Mr. Carpenter said: "You have quite a large stock here, Mr. Taylor;" and Mr. Taylor replied: "Yes, but I am afraid it won't pay my debts." This part of a conversation expressed one point of view of each of the parties as to the existing situation, and suggests those preliminary considerations which led the parties to agree upon a course that involved the running of the business for months instead of closing it out as is ordinarily done, with a result most satisfactory to the defendant until the time came for him to pay the agreed compensation for the skillful and almost continuous services of the plaintiff; and well it may have been satisfactory to him, for during those few months and through the instrumentality of this plaintiff defendant's goods had passed out from under the levy of the sheriff, his debts had been paid and he was in possession of a going business with a stock of substantial value and an available surplus. The evidence complained of was not offered for the purpose of varying the contract or to show that the parties made a different agreement than that which was subsequently expressed in writing, nor did it have that effect, but, in view of the character of the defense, it was receivable because it was proper to show the facts and circumstances surrounding and attending the making of the written agreement inasmuch as the rule of law was not thereby violated *187 which prohibits the introduction of oral testimony for the purpose of varying the terms of a written agreement.
¶9The judgment should be affirmed, with costs.
¶10BARTLETT, HAIGHT, LANDON and CULLEN, JJ., concur with O'BRIEN, J., for reversal; VANN, J., concurs with PARKER, Ch. J., for affirmance.
¶11Judgment reversed, etc.