Majority
p. 373The People of the State of New York ex rel. Mary B. Nichols and George Nichols, as Trustees under the Last Will and Testament of John W. T. Nichols, Deceased, Appellants, v. William Stanley Miller and Others, as Commissioners of Taxes and Assessments of the City of New York, Respondents. (Taxes of 1935 — Taxes of 1936 — Taxes of 1937.) First Department, November 18, 1938.
Harry H. Chambers of counsel [Harry B. Chambers with him on the brief; Chambers & Chambers, attorneys], for the appellants.
Otto H. Frank of counsel [Arthur A. Segall, Hyman W. Kehl and Mendel Lurie with him on the brief; William C. Chanler, Corporation Counsel], for the respondents.
An examination of the record establishes that the relators made out a prima facie case and sustained the burden of proof by a fair preponderance of the evidence which the referee to whom the issues were referred found to be credible. The presumption on which defendants rely was overcome, but at the
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close of relators’ case defendants rested and offered no proof whatever, though defendants’ expert was present at the trial. In that state of the record it was error for the Special Term to refuse to confirm the referee’s reports.
The orders of the Special Term should be reversed, with twenty dollars costs and disbursements, and the motions to confirm the referee’s reports granted.
Present — Martin, P. J., O’Malley, Townley, Glennon and Dore, JJ.
Orders unanimously reversed, with twenty dollars costs and disbursements, and the motions to confirm the referee’s reports granted. Settle order on notice.