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brothers and sisters of testatrix. There was not an absolute gift to the daughters of the testatrix which vested the bequests in them so as to prevent the provisions of the will from being carried into effect.

Edward Webster, for applt. H. D. Tucker, for respt.

Held, Untenable, as the several causes of action attempted to be enforced by plaintiff are consistent and co-exist independent of each other and are each maintainable until satisfaction of the whole damage is finally obtained. 1 Hill, 484. When a party has been induced by fraud to enter into an executed contract for the purchase of property he may upon discovREMEDIES. BAR. ering the fraud either rescind the

Judgment ot General Term, reversing decree of surrogate, af. firmed.

Opinion by Miller, J.

cur.

FRAUD.

All con

N. Y. COURT OF APPEALS. Bowen, respt., v. Mandeville, applt.

Decided March 4, 1884.

A party may prosecute as many remedies as he legally has, provided they are consistent and concurrent.

An action to recover damages for fraud on the sale and guaranty of a bond and mort gage is not barred by the prior recovery of judgments upon the guaranty for interest accruing upon the mortgage. The two remedies are consistent and independent of each other and are each maintainable until full satisfaction is obtained. Affirming S. C., 16 W. Dig., 352.

This action was brought to recover damages for an alleged fraud on the sale and guaranty by defendant to plaintiff of a bond and mortgage. The fraud consisted of false representations as to the value and condition of the mortgaged premises. It did not appear that plaintiff attempted to rescind the contract of sale. Defendant claimed that the action was barred by the recovery by plaintiff of two judgments against defendant, upon the latter's guaranty, for interest that had accrued on the mortgage.

contract and after restoring to the other party whatever may have been received thereon sue for and recover back the entire consideration paid by him, or he may retain what he has received and sue for and recover such damages as he can establish have been occasioned by the fraud. 4 Paige, 537; 34 N. Y., 473; 46 id., 54. But these remedies being inconsistent cannot both be prosecuted and maintained. A party may, however, prosecute as many remedies as he legally has, provided they are consistent and concurrent. 55 Barb., 263; 3 Abb. N. C., 92; 1 E. D. S.. 261; 7 J. & S., 190; 1 N. Y., 312; 1 Hill, 484; 4 Den., 554; 8 Abb., N. S., 257.

Order of General Term, reversing order of Special Term denying motion to set aside a non suit and for a new trial, affirmed.

Opinion by Ruger, Ch. J.; Miller, Earl and Finch, JJ., concur; Andrews, J.,in result; Rapallo, J., on ground that the prior recoveries relate only to the first two instalments; Danforth, J., dissents.

SURROGATES. ADMINISTRA

TION.

N. Y. COURT OF APPEALS.

In re accounting of Hughes,

admr.

Decided Feb. 26, 1884.

sets were removed to this state by one of the intestate's next of kin, who was subsequently appointed administrator here, illegally but without any wrongful intent; that there are no unpaid creditors in Pennsylvania, and the only persons interested in the distribution reside in this state. On a final accounting by the New York ad

Where assets of one who was domiciled and died in another state are in a county of this state at the time of application for let-ministrator the Surrogate rendered ters of administration the Surrogate of such county has jurisdiction to issue letters and to decree distribution on a final ac

counting, and he is not deprived of such jurisdiction by the fact that the assets were irregularly brought to this state. Whether in such a case the assets shall be remitted to the intestate's domicil for distribution is a question of judicial discretion depending on the circumstances of the particular case.

Reversing S. C., 16 W. Dig., 268.

One H. died in Pennsylvania, leaving assets in that state which were subsequently brought into the county of Kings, in this state, and were in that county when let ters of administration were granted to the petitioner, Jan. 5, 1880. An administrator was appointed in Pennsylvania Jan. 12, 1880, upon the request of the administrator in this state, who became surety upon his bond H. left five brothers and sisters, his only next of kin, all of whom reside in this state, and presumably consent to distribution in this state. It is not denied that the rule of distribution is the same in New York as in Pennsylvania. The New York administrator had assets in his hands ready for distribution, amounting to $31,827.16, and comprising the bulk of the estate. It appeared that the as

a decree directing said administrator to remit the assets in his hands after deducting expenses of accounting, to the administrator in Pennsylvania.

Joseph A. Burr, Jr., for applt. Arthur J. Delaney, for respt. Held, Error; that the Surrogate of Kings county had jurisdiction to issue letters of administration to the petitioner and also on his final accounting to decree final distribution of the estate of the intestate in his hands; whether he should remit the assets for distribution to the jurisdiction of the intestate's domicile is a question not of jurisdiction but of judicial discretion depending upon the circumstances of the case. 1 Mason, 380; 20 N. Y., 103; 53 id., 192. This does not interfere with the principle of law that personal property is distributable and that succession thereto is regulated by the law of the decedent's domicile. The Surrogate was not deprived of jurisdiction because the assets were irregularly brought here, nor does that fact deprive him of jurisdiction to decree distribution. 1 Binney, 349, note.

Judgment of General Term, affirming decree of Surrogate,

reversed, and case remitted to existed at the time of the sale Surrogate. the judgment in favor of the Opinion by Andrews, J. All plaintiff was predicated upon

concur.

PRACTICE.

N. Y. COURT OF APPEALS.

Simms, respt., v. Vogt et al., applts.

Decided Feb. 8, 1884.

A general exception to each and every part of the finding and conclusion of the trial court is insufficient if any part of the conclusion is good.

This was an action of ejectment. The defendant claimed that plaintiff's title was taken subject and subordinate to certain leases and certificates given by the city of Brooklyn upon sale of the premises in question for non-payment of taxes and water rents, under which defendant claims title and possession. This contention is based upon the usual direction to the referee contained in a judgment of foreclosure of a mort

the finding that no lien was im posed by the tax proceedings, and if invalid defendant could acquire no right under them.

Defendant also claimed that no evidence was given of the value of rents and profits, and therefore that the trial judge erred in allowing for them more than a nominal amount. There is no exception which raises this question, but only a general exception to each and every part of the finding and conclusion of the trial court.

Held, That such a general exception is insufficient if any part of the conclusion is good.

Judgment of General Term, affirming judgment for plaintiff, affirmed.

Opinion by Danforth, J. All

concur.

PROMISSORY NOTE.
ENDORSER.

TERM. FIRST DEPT. Willard Parker, applt., v. Albro B. Stroud et al., respts.

Decided Jan. 25, 1884.

gage, under which plaintiff claims N. Y. SUPREME COURT. GENERAL as purchaser, "that out of the moneys arising from the sale of the mortgaged premises" the referee shall retain "the amount of any lien or liens upon them at the time of such sale for taxes or assessments." It was not pretended that any money was obtained for that purpose or that the purchaser undertook their payment.

John H. Clayton, for applt. D. P. Barnard, for respt. Held, That while it may be granted that the purchaser took his title subject to any lien which

When the holder of a promissory note payable on demand demands payment thereof of the maker personally, although the note by its terms is payable at a certain bank, and payment thereof is refused, in order to hold an endorser he must immediately present it at the bank named and notify the endorser of its non-payment, and if he neglects to do so the endorser will be discharged.

Appeal from judgment dismissing complaint.

This action was brought against defendants Mason & Stroud as maker and endorser respectively of a promissory note for $1100, payable on demand at the Importers & Traders Nat'l B'k, N. Y. City. Mason allowed judgment to be taken against him by default, but Stroud defended mainly upon the ground that plaintiff had demanded payment of the note of the maker, and was advised of his inability to pay, and omitted to notify him as endorser of that fact. The note was dated Nov. 23, 1870, and it appeared that, within six months thereafter, the maker was requested by letter to pay it, and failed to comply with such request; that, thereafter, plaintiff again wrote to the maker desiring payment, and received a reply to the effect that he was negotiating for the sale of certain real estate and would pay the note if it was effected; that in 1877 the maker wrote to plaintiff stating that he was financially embarassed and requesting time; that in September and December 1879, plaintiff's counsel wrote to the maker requesting payment, but that the note was not paid; and that, on Feb. 20, 1880, the note was presented for payment at the bank specified in it, and payment thereof was refused. The endorser was not notified of any of the demands with the exception of the last mentioned one, and plaintiff claimed that the prior ones were of no effect inasmuch as they were not made at the bank where the note was payable.

Arthur H. Masten, for applt.

Thomas & M. E. Barlow, for respt.

Held, That, since the maker, when applied to personally, admitted his inability to pay. it is clear that there were no funds in the bank for that purpose; and the presentation at the bank, if necessary as a matter of form, should then have been made in addition to the personal demand if the plaintiff designed to hold the endorser. He knew of the maker's declaration that the note could not be paid; and he was therefore advised of the essential fact which put upon him the obligation to send notice to the endorser.

48

That it has not been declared in any case that a presentation for payment to the maker of a note payable on demand is not an actual demand, although the note is payable at a particular place. A strict compliance with the terms of the note in that respect could be insisted upon only by the endorser. The maker would not be discharged by the omission. N. Y., 520. If the holder choose to adopt another mode of presentation, and, in that way, learns of the inability of the maker to pay, he cannot delay the formal presentation, deal with the maker by extending his time, and when he finds that insolvency has intervened make presentation at the stipulated place and insist that prior to that act there was no actual demand.

That the obligation resting upon plaintiff after he had demanded payment of the note from the maker was to present it to the

bank for payment and to notify | owned by them, and by the Com

the endorser of the dishonor of the note resulting from either or both of the demands.

Merritt v. Todd, 23 N. Y., 28, distinguished.

Judgment affirmed.

Opinion by Brady, J.; Davis, P. J., and Daniels, J., concur.

TAXATION.

N. Y. SUPREME COURT. GENERAL

TERM. FIRST DEPT.

The People ex rel. Wm. J. Syms et al. v. The Tax Commissioners of the City of New York.

Decided Jan. 25, 1884. When the owner of real estate situated in the city of New York applies to the Tax Commissioners of said city for a reduction of

the assessed value of such land on the ground that it is excessive for reasons stated, the commissioners themselves are entitled to obtain further information, and to act, to a certain extent, upon their own observations and judgment, and where they have taken that course, and in good faith have adopted the valuations complained of, as long as no legal principle was violated in doing so the court will not interfere for the reversal of their proceedings. When no legal error was committed in making the valuations, but they were graduated by what was considered by the Commissioners to be the fair and reasonable effect of all the evidence upon which their action was authorized to be taken, and the only ground of complaint is that the force and weight of the evidence has not been accurately measured, an appellate court should be exceedingly reluctant to interfere and to derange and disturb the system adopted

and pursued in making the assessments.

Appeal by relators from an order denying their motion to make further reductions in the assessed the assessed value of certain real property

missioners from so much of the order as reduced the valuation of certain lots from $65,000 to $60,000.

Relators were owners of real property situated on Murray street in New York city, and, considering the valuation put upon such property for the purpose of taxation by defendants excessive, applied to them for a reduction of such valuation, claiming that the value of their property had been very much reduced by the prox The commissioners sent a deputy imity of the Elevated Railroad. to inspect the property, and such deputy reported in favor of a large reduction of the valuation. Thereupon the commissioners made a reduction, but not so great a one as was recommended by the deputy, and the relators, therefore, procured a writ of certiorari in order to force them to make a farther reduction. Upon the hearing which was subsequently had under Chap. 269, Laws of 1880, the court made the order appealed from, by which it confirmed all the valuations of the commissioners with the exception of those of two of the lots, which it reduced from $65,000 to $60,000.

H. Brewster, for relator.

Albert L. Cole, for defts.

Held, That the commissioners themselves are entitled to obtain further information when a complaint is made of the valuation put upon real estate by them, and also to act, to a certain extent, upon their own observations and judgment, and that they seem to have done in this instance, and where

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