In re the Reappraisal under the Transfer Tax Act of the Estate of Smith

Majority

p. 480

In the Matter of the Reappraisal under the Transfer Tax Act of the Estate of Elizabeth H. Smith, Deceased. William J. Morgan, as Comptroller of the State of New York, Appellant; John J. Connelly, as Executor, etc., of Elizabeth H. Smith, Deceased, Respondent.

Headnote

Transfer tax — order by a justice of the Supreme Court directing a reappraisal — the court has no power to vacate it.

Th¿ Supreme Court lias no power to vacate an order made by a justice of that court,, under section 333 of the Tax Law (Laws of 1896, chap. 908), directing á reappraisal of the estate of a decedent for the purpose of assessing the transfer tax thereon. ■ . - , ■ .

Appeal by William J. Morgan, as Comptroller of the State of Hew York, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the -county of Hew York on the 2d day ef March, 1899, vacating an order made at the Hew York Special Term bearing date the 12th day of October,. 1898, directing a reappraisal of the., estafe • of Elizabeth H. Smith, deceased.

p. 481

W. E. Kisselburgh, Jr., Assistant Attorney-General, for the appellant, the State Comptroller.

Stillman F. Kneeland, for the respondent.

Mrs. Elizabeth Smith died on the 2d of March, 1897, leaving, amongst other property, 1,382 shares of stock of the Barrett Manufacturing Company, which on the 16th of November, 1897, were appraised for transfer tax at the- value of $70,000. On the 12th of October, 1898, one of the justices of this court made an e,u parte order directing' a reappraisal of the estate upon evidence that the stock was in fact worth $138,000 at the time of Mrs. Smith’s death, and that for that reason the former appraisal had been erroneously made. A motion was afterwards made by the executor for an order vacating this order of reappraisal, upon the ground that it was im providently made, and upon that motion the court made an order that the order of reappraisal dated October 12,1898, be vacated and set aside. From that order this appeal is taken.

We think the court had no authority to vacate the order of reappraisal. The courts have no general jurisdiction to be exei'cised summarily in proceedings under the Transfer Tax Law. What is to be done under that statute is prescribed by the statute and must be done as prescribed, and by the magistrate who is directed to do it, and the courts generally have no jurisdiction in the matter.

In these proceedings they can act only as they are authorized to act by the statute. The reappraisal in question was ordered under the authority contained in section 232 of chapter 908 of the Laws of 1896, which provides thatwithin two years after the entry of an order or decree of a surrogate, determining the value of an estate and assessing the tax thereon, the comptroller of the state may, if he believes that such appraisal, assessment or determination has been fraudulently, collusively or erroneously made, make application to a justice of the supreme court of the judicial district in which the former owner of such estate resided, for a reappraisal thereof. The justice to whom such application is made, may thereupon appoint a competent person to reappraise such estate.” There are no other statutory provisions on this subject. The

p. 482

power is to be executed by a justice of the court. No notice is required and no provision is made for vacating his order or for a review of it in any other way. The' matter is one in. which the court as such has no authority whatever and no supervisory power, and it has no right to vacate the order, such as is possessed in regard to- orders made in an action or special proceeding in which the court has general jurisdiction.

The order, therefore, to vacate this appraisal was erroneously granted and should be reversed, with ten dollars costs and disbursements of the appeal, and the motion denied, with ten dollars costs.

Van Brunt, P. J., Barrett and Patterson, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.