In re Estate of Schermerhorn — 38 A.D. 350

Majority

p. 350

In the Matter of the Estate of Edmund H. Schermerhorn, Deceased. James A. Roberts, Comptroller of the State of New York, Bird S. Coler, Comptroller of the City of New York, Appellants and Respondents; William C. Schermerhorn, Sole Acting Executor of the Last Will and Testament of Edmund H. Schermerhorn, Deceased, Respondent and Appellant.

Headnote

Surrogate—?power of', to decree a previous order and a payment thereunder io he erroneous,

A surrogate has no power to make an order decreeing that an order of appraisal made in a transfer tax proceeding, and which has remained unreversed, was erroneous in certain respects, and that a payment in- pursuance thereof, of the transfer tax so assessed, so far as it related to certain securities, was made in error.

Quiere, as to the power of the surrogate to modify the order of appraisal.

Appeal by James A. Roberts, Comptroller of the State of Mew York, Bird S. Coler, comptroller of the city of Mew York, and William C. Schermerhorn, sole acting executor of the last will and testament of Edmund H. Schermerhorn, deceased, from an order of the Surrogate’s Court of Mew York county, entered in said Surrogate’s Court on the SYth day of April, 1898, decreeing that an appraisal theretofore rnadein the proceeding'was erroneous,'in so . far as it related to certain sécurities, and that the payment of the transfer tax so assessed, so far as it related to said securities, was made in error.

Emmet R. Oloott, for the Comptrollers.

E. O. Boevtfdmom, for the -executor.

We fail to find, and our attention has not been called, to any authority conferred upon the surrogate to make such an order as the one appealed from. There are provisions for reviewing the determination of the surrogate by appeal and there are also provisions authorizing the' surrogate under certain circumstances to modify and set aside' adjudications which may have been made . by him. The application made to the surrogate in this ease falls under neither of these heads; and the relief granted is not embraced within any power which the surrogate possesses.

The order appealed from is simply a decretal order declaring erroneous a previous order, and that a payment in pursuance of the previous order was made in error. The order referred to remained unreversed,, unmodified and of full effect; and, consequently, has the same force that it had prior to this attempt upon the part of the surrogate to decree it erroneous. If an application had been made to the surrogate to modify the order, different questions might have arisen. But it is difficult to sec how even such a motion could now avail, the timé to appeal from the order"having expired and it having become final and conclusive.

We think, therefore, that the surrogate was entirely without jurisdiction to make the order appealed- from and that the same should be reversed, with costs, and the motion, of the petitioner-denied, with costs. .

Barrett, Rumsey, O’Brien and Ingraham, JJ.; concurred.

Order reversed, with costs, and motion denied, with costs.