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brothers and sisters of testatrix. Edward Webster, for applt. There was not an absolute gift to H. D. Tucker, for respt. the daughters of the testatrix Held, Untenable, as the several which vested the bequests in them causes of action attempted to be so as to prevent the provisions of enforced by plaintiff are consistthe will from being carried into ent and co-exist independent of effect.

each other and are each maintainJudgment ot General Term, re. able until satisfaction of the whole versing decree of surrogate, af damage is finally obtained. 1 Hill, firmed.

484. When a party has been inOpinion by Miller, J. All con- duced by fraud to enter into an

executed contract for the purchase

of property he may upon discov. FRAUD. REMEDIES. BAR. ering the fraud either rescind the N. Y. COURT OF APPEALS.

contract and after restoring to the

other party whatever may have Bowen, respt., v. Mandeville,

been received thereon sue for and applt.

recover back the entire consideraDecided March 1, 1884.

tion paid by him, or he may retain A party may prosecute as many remedies as what he has received and sue for

he legally has, provided they are consistent and recover such damages as he

and concurrent. An action to recover damages for fraud on

can establish have been occasioned the sale and guaranty of a bond and mort by the fraud. 4 Paige, 537 ; 34 N. gage is not barred by the prior recovery of Y., 473; 46 id., 54. But these judgments upon the guaranty for interest remedies being inconsistent cannot accruing upon the mortgage. The two remedies are consistent and independent of both be prosecuted and maineach other and are each maintainable until tained.

tained. A party may, however, full satisfaction is obtained.

prosecute as many remedies as he Affirming S. C., 16 W. Dig., 352.

legally has, provided they are conThis action was brought to resistent and concurrent. 55 Barb., cover damages for an alleged fraud 263; 3 Abb. N. C., 92 ; 1 E. D. S.. on the sale and guaranty by de- 261 ; 7 J. & S., 190 ; 1 N. Y., 312 ; fendant to plaintiff of a bond and i Hill, 484 ; 4 Den., 554; 8 Abb., inortgage.

The fraud consisted N. S., 257. of false representations as to the Order of General Term, reversvalue and condition of the mort- ing order of Special Term denying gaged premises. It did not appear motion to set aside a non suit and that plaintiff attempted to rescind for a new trial, affirmed. the contract of sale. Defendant Opinion by Ruger, Ch. J.; Milclaimed that the action was barred ler, Earl and Finch, JJ., concur ; by the recovery by plaintiff of two Andrews, J., in result; Rapallo,J.. judgments against defendant, up- on ground that the prior recoveries on the latter's guaranty, for in relate only to the first two instalterest that had accrued on the ments; Danforth, J., dissents. mortgage.

SURROGATES. ADMINISTRA- sets were removed to this state by TION.

one of the intestate's next of kin,

who was subsequently appointed N. Y. COURT OF APPEALS.

administrator here, illegally but In re accounting of Hughes, without any wrongful intent ; that admr.

there are no unpaid creditors in

Pennsylvania, and the only perDecided Feb. 26, 1884.

sons interested in the distribution Where assets of one who was domiciled and

reside in this state. On a final died in another state are in a county of accounting by the New York adthis state at the time of application for let- ministrator the Surrogate rendered ters of administration the Surrogate of such county bas jurisdiction to issue letters

a decree directing said adminisand to decree distribution on a final ac

trator to remit the assets in his counting, and he is not deprived of such ju- hands after deducting expenses of risdiction by the fact that the assets were accounting, to the administrator

irregularly brought to this state. Whether in such a case the assets shall be

in Pennsylvania. remitted to the intestate's domicil for dis

Joseph A. Burr, Jr., for applt. tribution is a question of judicial discretion Arthur J. Delaney, for respt. depending on the circumstances of the par- Held, Error ; that the Surrogate ticular case. Reversing S. C., 16 W. Dig., 268.

of Kings county bad jurisdiction

to issue letters of administration One H. died in Pennsylvania, to the petitioner and also on his leaving assets in that state which final accounting to decree final diswere subsequently brought into tribution of the estate of the intesthe county of Kings, in this state, tate in his hands; whether he and were in that county when let should remit the assets for distriters of administration were granted bution to the jurisdiction of the to the petitioner, Jan. 5, 1880. An intestate's domicile is a question administrator was appointed in not of jurisdiction but of judicial Pennsylvania Jan. 12, 1830, upon discretion depending upon the cirthe request of the administrator cumstances of the case. 1 Mason, in this state, who became surety up- 380; 20 N. Y., 103; 63 id., 192. on his bond H. left five brothers This does not interfere with the and sisters, his only next of kin, principle of law that personal all of whom reside in this state, property is distributable and that and presumably consent to dis- succession thereto is regulated by tribution in this state. It the law of the decedent's domicile. is not denied that the rule of The Surrogate was not deprived of distribution is the same in New jurisdiction because the assets York as in Pennsylvania. The were irregularly brought here, nor New York administrator had does that fact deprive him of assets in his hands ready for dis- jurisdiction to decree distribution. tribution,amounting to $31,827.16, 1 Binney, 349, note. and comprising the bulk of the Judgment of General Term, estate. It appeared that the as- 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.

the finding that no lien was im

posed by the tax proceedings, and PRACTICE.

if invalid defendant could acquire

no right under them. N. Y, COURT OF APPEALS.

Defendant also claimed that no Simms, respt., v. Vogt et al., evidence was given of the value of applts.

rents and profits, and therefore

that the trial judge erred in allowDecided Feb. 8, 1884.

ing for them more than a nominal A general exception to each and every part amount. There is no exception of the finding and conclusion of the trial which raises this question, but court is insufficient if any part of the con

only a general exception to each clusion is good.

and every part of the finding and This was an action of ejectment. conclusion of the trial court. The defendant claimed that plain. Hela, That such a general exceptiff's title was taken subject and tion is insufficient if any part of subordinate to certain leases and the conclusion is good. certificates given by the city of Judgment of General Term, Brooklyn upon sale of the prem affirming judgment for plaintiff, ises in question for non-payment affirmed. of taxes and water rents, under Opinion by Danforth, J. All which defendant claims title and possession. This contention is based upon the usual direction to

PROMISSORY NOTE. the referee contained in a judg

ENDORSER. ment of foreclosure of a mortgage, under which plaintiff claims N. Y. SUPREME COURT. GENERAL as purchaser, “that out of the TERM. FIRST DEPT. moneys arising from the sale of

Willard Parker, applt., v. Albro the mortgaged premises” the ref. B. Stroud et al., respts. eree shall retain “ the amount of any lien or liens upon them at the

Decided Jan. 25, 1884. time of such sale for taxes or as- When the holder of a promissory note payable sessments.” It was not pretended on demand demands payment thereof of the that any money was obtained for maker personally, although the note by its

terms is payable at a certain bank, and pay. that purpose or that the purchaser

ment thereof is refused, in order to hold an undertook their payment.

endorser he must immediately present it at John H. Clayton, for applt. the bank named and notify the endorser of D. P. Barnard, for respt.

its non-payment, and if he neglects to do Held, That while it may be

so the endorser will be discharged. granted that the purchaser took Appeal from judgment dismisshis title subject to any lien which ling complaint.


This action was brought against Thomas & M. E. Barlow, for defendants Mason & Stroud as respt. maker and endorser respectively Held, That, since the maker, of a promissory note for $1100, when applied to personally, adpayable on demand at the Im- mitted his inability to pay, it is porters & Traders Nat'l B'k, N. clear that there were 'no funds in Y. City.

Mason allowed judg. the bank for that purpose; and the ment to be taken against him by presentation at the bank, if necesdefault, but Stroud

but Stroud defended sary as a matter of form, should mainly upon the ground that plain then have been made in addition tiff had demanded payment of the to the personal demand if the note of the maker, and was ad- plaintiff designed to hold the envised of his inability to pay, and dorser. He knew of the maker's omitted to notify him as endorser declaration that the note could not of that fact. The note was dated be paid; and he was therefore adNov. 23, 1870, and it appeared that, vised of the essential fact which within six months thereafter, the put upon him the obligation to maker was requested by letter to send notice to the endorser. pay it, and failed to comply with That it has not been declared in such request; that, thereafter, any case that a presentation for plaintiff again wrote to the maker payment to the maker of a note desiring payment, and received a payable on demand is not an actual reply to the effect that he was ne demand, although the note is paygotiating for the sale of certain able at a particular place. A real estate and would pay the note strict compliance with the terms if it was effected; that in 1877 the of the note in that respect could maker wrote to plaintiff stating be insisted upon only by the en. that he was financially embarassed dorser. The maker would not be and requesting time; that in Sep- discharged by the omission. 48 tember and December 1879, plain. N. Y., 520. If the holder choose tiff's counsel wrote to the maker to adopt another mode of presentarequesting payment, but that the tion, and, in that way, learns of the note was not paid; and that, on inability of the maker to pay, he Feb. 20, 1880, the note was pre- cannot delay the formal presentasented for payment at the bank tion, deal with the maker by exspecified in it, and payment there. tending his time, and when he of was refused. The endorser was finds that insolvency has internot notified of any of the demands vened make presentation at the with the exception of the last men- stipulated place and insist that tioned one, and plaintiff claimed prior to that act there was no acthat the prior ones were of no tual demand. effect inasmuch as they were not That the obligation resting upon made at the bank where the note plaintiff after he had demanded was payable.

payment of the note from the Arthur H. Masten, for applt. maker was to present it to the


bank for payment and to notify | owned by them, and by the Comthe endorser of the dishonor of the missioners from so much of the note resulting from either or both order as reduced the valuation of of the demands.

certain lots from $65,000 to $60,000. Merritt v. Todd, 23 N. Y., 28, Relators were owners of real distinguished.

property situated on Murray street Judgment affirmed.

in New York city, and, considerOpinion by Brady, J.; Davis, ing the valuation put upon such P. J., and Daniels, J., concur. property for the purpose of taxa

tion by defendants excessive, apTAXATION.

plied to them for a reduction of

such valuation, claiming that the N.Y. SUPREME COURT. GENERAL value of their property had been TERM. FIRST DEPT.

very much reduced by the prox. The People ex rel. Wm. J. Syms imity of the Elevated Railroad. et al. v. The Tax Commissioners The commissioners sent a deputy of the City of New York.

to inspect the property, and such

deputy reported in favor of a large Decided Jan. 25, 1884.

reduction of the valuation. ThereWhen the owner of real estate situated in the upon the commissioners made a

city of New York applies to the Tax Com reduction, but not so great a missioners of said city for a reduction of as was recommended by the depthe assessed value of such land on the uty, and the relators, therefore, ground that it is excessive for reasons stated; procured a writ of certiorari in the commissioners themselves are entitled to obtain further information, and to act,

order to force them to make a farto a certain extent, upon their own obser- ther reduction. Upon the hearing vations and judgment, and where they have which was subsequently had untaken that course, and in good faith have

der Chap. 269, Laws of 1880, the adopted the valuations complained of, as long as no legal principle was violated in

court made the order appealed doing so the court will not interfere for the from, by which it confirmed all reversal of their proceedings.

the valuations of the commissionWhen no legal error was committed in mak

ers with the exception of those of ing the valuations, but they were graduated by what was considered by the Commis

two of the lots, which it reduced sioners to be the fair and reasonable effect | from $65,000 to $60,000. of all the evidence upon which their action H. Brewster, for relator. was authorized to be taken, and the only

Albert L. Cole, for defts. ground of complaint is that the force and weight of the evidence has not been accu

Held, That the commissioners rately measured, an appellate court should themselves are entitled to obtain be exceedingly reluctant to interfere and to further information when a comderange and disturb the system adopted plaint is made of the valuation put and pursued in making the assessments.

upon real estate by them, and also Appeal by relators from an order to act, to a certain extent, upon denying their motion to make fur- their own observations and judgther reductions in the assessed ment, and that they seem to have value of certain real property 'done in this instance, and where

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