Majority
p. 151In the Matter of the Transfer Tax upon the Estate of George F. Seymour, Deceased. Daniel Seymour and Norman Seymour, Executors and Trustees under the Last Will and Testament of George F. Seymour, Deceased, Appellants, The Comptroller of the State of New York, Respondent. Fust Department, April 7, 1911.
Headnote
Appeal — surrogate — order fixing transfer tax—filing notice in court.A court oi judge cannot extend the" time within which, an appeal must be taken.
An admission by the attorney for the State Comptroller of service of a notice of appeal from an order of a Surrogate’s Court fixing a transfer tax is not a waiver of a default in appealing, nor does it excuse a failure to file the notice in the office of the surrogate within the time prescribed by section 232 of the Tax Law.
Appeal by Daniel Seymour and another, as executors and trustees, etc., from an order of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 1st day of June, 1910, confirming the report of an appraiser.
Edgar N. Dollin, for the appellants.
Henry A. Miller, for the respondent.
If the appeal to the surrogate had been taken in due time we should be disposed to hold that the executors might be
p. 152
relieved from their stipulation. It is unnecessary, however, to discuss that question because an -appeal- was not taken in time and neither this court nor the Surrogate’s Court has authority to extend the statutory time within which an appeal must be taken. Section 232 of the Tax Law (Consol. Laws, chap. 60; Laws of 1909, chap. 62) prescribes how and within what time an appeal in a ' dase like the present may be taken. The ■appeal.is taken by filing in the. office of the surrogate a written notice of appeal, and to be effective such notice must be filed within sixty dayÁ from the fixing; assessing and determination of the tax. The appellants in the present case did not file their notice of appeal in time, and consequently the appeal never became effective and the surrogate never acquired jurisdiction to- hear it: Section 784 of the Code of Civil Procedure expressly forbids any court or judge to extend' the time fixed by law within which an appeal must be taken, and the courts have invariably, refused to do so. (Wait v. Van Allen, 22 N. Y. 319 ; Kelly v. Sheehan, 76 id. 325 ; Clapp v. Hawley, 97 id. 610.) The admission of service of the notice of appeal by the attorriey of the State Comptroller cannot be accepted ás a waiver of the default in appealing, for the validity of the appeal depended, not upon service of notice thereof upon the attorney, but jupon timely filing of the notice in the surrogate’s office. ; •
The order appealed from must be affirmed, with ten dollars costs and. disbursement^;
Ingraham, P. J., McLaughlin, Clarice- and Dowling, JJ.,' concurred.. ¡
Order affirmed, with ¡ten dollars costs and disbursements.
Cases cited
- Wait v. Van Allen 22 N. Y. 319 p. 152