Opinion of the Court, per O'BRIEN, J. [Vol. 164. by the terms of the trust instrument, and is not to be measured by the conduct of other trustees who failed to accomplish such desirable results. We think, also, that the agreement is invalid on the ground of public policy. A trustee who holds the title to property for the benefit of others cannot use his position for his personal advantage. He cannot make profit for himself in the execution of the trust. He cannot ordinarily deal with the beneficiaries or parties interested in the estate so as to acquire the ownership of the trust property. We are now dealing with a case where the extra compensation was not given by will nor by the trust instrument, but by an agreement between the trustee and beneficiary after the former had accepted the trust and become vested with the title to the trust property. The learned counsel for the plaintiff has cited cases which contain dicta that would seem to support his contention, but in no one of them was the precise point involved. In most, if not all of them, the court referred to cases where extra compensation was given by will or by the trust instrument. It is, doubtless, true, as these cases hold, that a person may do what he will with his own. He may dispose of what he owns by gift or any other mode of transfer, if the transaction is free from fraud and can be said to be his voluntary act. The principle applies to parties who deal with each other on terms of equality, or, as it is sometimes expressed, at arin's length. But it has no application to the case of a trustee who bargains with the beneficiary for a greater share or interest in the trust estate than he would be otherwise entitled to. In such cases the trustee occupies the dominant position, and the beneficiary or person interested in the estate is, in some respects, subject to his power and influence. For obvious reasons the disability of the trustee to bargain with the beneficiary for a share or interest in the property, whether in the form of compensation or otherwise, is absolute in order to avoid the possibility of fraud. In such cases the law acts upon the principle that the temptation of self-interest is too powerful and insinuating to be trusted. (Perry on Trusts, §§ 129, 196, 209, 427; N. Y. Rep.] Opinion of the Court, per O'BRIEN, J. Munson v. S., G. & C. R. R. Co., 103 N. Y. 58; Sage v. Culver, 147 N. Y. 241; McClure v. Law, 161 N. Y. 78.) The plaintiff held all of the assigned property in trust, first for the benefit of creditors, and the surplus, if any, for the assignor. While occupying this position he bargained with the defendant for a large share of the surplus, if any, without any other consideration than the performance of services which he had already undertaken to perform for the statutory compensation. When the beneficiary is called upon to perform a contract entered into under such circumstances, as the defendant is in this case, he may resist the claim, and the courts cannot sustain such an agreement without encouraging obvious abuses in the administration of trusts. The officer, or other person, to whom a fee or other compensation is allowed by law for any services, is forbidden by statute to charge or receive a greater fee or reward for that service than is so allowed. (Code, § 3280.) It was held that this statute applied to a claim by a court stenographer for extra compensation based upon an agreement, the consideration of which was his undertaking to furnish minutes more expeditiously than otherwise would be required. (McCarthy v. Bonynge, 12 Daly, 336; affirmed, 101 N. Y. 668.) We see no reason why it does not apply with equal force to the agreement in this case. When a statute forbids a person to ask or receive compensation for services in an official cr trust capacity, greater than that prescribed by law, an agreement to pay such extra compensation creates no binding obligation. (Hatch v. Mann, 15 Wend. 44; Crofut v. Brandt, 58 N. Y. 106; Moss v. Cohen, 158 N. Y. 240.) One of the defenses which the defendant interposed to the plaintiff's claim was that the agreement was made under some kind of duress, but this was negatived by the verdict of the jury. We have assumed that it was freely made, but it was, nevertheless, open to the defendant to assail it upon the grounds that have been discussed. The judgment must be reversed and a new trial granted, costs to abide the event. LANDON, J. I concur in the opinion of Judge O'ERIEN. I take this occasion to remark: The unanimous decision of the Appellate Division, that there is evidence tending to support the verdict, is based upon the assumption that that court rules correctly upon the question of law applicable to the case. Both law and fact must support a verdict to give it validity; whence it follows that lacking either support it must fail. And where the supporting force of the law has been duly challenged during the trial, as in this case, the question of law is reviewable here, although the question of fact is not. The opposite doctrine seems to rest upon the theory that it is inconceivable that where the evidence supports a verdict, it can be reviewed upon the law without also reviewing it upon the facts. Such is not the view of the Constitution, for it does not preclude a review of the verdict or finding, but only of the unanimous decision of the Appellate Division that there is evidence supporting or tending to sustain it. It regards such decision as upon a question of law, otherwise there would be no need to exclude it from our jurisdiction to review questions of law. It excludes no other question of law, although it enables the legislature to do so by enabling it to further restrict our jurisdiction. Now, a review of the question whether there is evidence supporting or tending to sustain a verdict or finding is not a review of that other question of law, namely, what judgment. does the law require upon the settled facts. We may concede that if the course of the trial has been such that we cannot tell by an inspection of the record whether the facts as found require the legal result which the verdict declares, we have no question of law presented to us; but that is a mere question of practice. If, by an inspection of the record, we can see just what the facts are that have been settled, and also see that the question of law as to the verdict which the law requires thereon was distinctly presented, then, I think, we have jurisdiction to review it. Such is this case. I submit that a party should not lose his right of review of a question of law essential to his protection by a tribunal N. Y. Rep.] Dissenting opinion, per PARKER, Ch. J. established to review it, not because of any omission or fault of his own, but because the question of law which ought to be reviewed is pronounced by the same verdict and decision which also settles the facts. PARKER, Ch. J. (dissenting). Two insuperable legal barriers should bar this court from considering whether the defendant was at the close of the trial entitled to judgment: First. 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 in Pollock 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. Sigua Iron 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.) Second. 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 Dissenting opinion, per PARKER, Ch. J. [Vol. 164. 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. * The 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 |