In re the Appraisal of the Estate of Wallace

It is the claim of the appellant that the surrogate had no power to issue a commission in thisjproceeding to obtain testimony for use before the appraiser. In Matter of Plumb ( 64 Hun, 317 ; affd. on opinion below, 135 N. Y. 661 ) it was held that the Surrogate’s Court of this State had power to issue a commission to take the testimony of witnesses who are without the State, in a proceeding pending in such courts and that the provisions of sections 887 and 888 of the Code of Civil Procedure apply thereto. By the provisions of the Tax Law (Laws of 1896, chap. 908, § 229) it is, among other things, provided that Surrogates’ Courts of every county of the’ State “ shall have jurisdiction to hear and determine all questions arising under the provisions of this article, and to do any act in relation thereto authorized by law to be done by a surrogate in other matters or proceedings coming within his jurisdiction.” Under the provisions of this statute and the authority construing the power vested in Surrogates’ Courts, it would seem to follow that a Surrogate’s Court has power to issue a commission to take the testimony of foreign witnesses in proceedings instituted under the Transfer' Tax Law. The point is raised that- assuming the power exists to authorize the issuance of a commission in this proceeding, yet tlie proof is insufficient to confer jurisdiction upon the surrogate to make the order authorizing its issue. The petition is undoubtedly insufficient tó confer such jurisdiction as it nowhere states that the property which it is claimed is subject to the tax is or ever was situate within the county of New York. This is essential to be stated in order to confer jurisdiction, for if not so situated the Surrogate’s Court would have no power over it. Forming a part'of the moving papers, however, and upon which the surrogate acted, is the affidavit of Philip W. Hopper, from which it appears that the money- which is. sought to be made subject to a tax was a portion of the proceeds of a sale of the interest of the decedent in the firm of Ogden & Wallace, and that such money was by various mesne transfers deposited to the credit of Lucy E. Wallace, the wife of the decedent, in the State Trust Company in the city of New York. It thus appears that the property which was the subject of the tax was within the city and county of New York at the time when the tax thereon attached and became due and payable. It was subject

It is further claimed that the act, chapter 658 of the Laws of 1900, amending sections 230 and 231 of article 10, chapter 908 of the Laws of 1896, is unconstitutional for the reason that it violates section 16 of article 3 of the Constitution of the State, which provides that “ no private or local bill which may be passed by the Legislature shall embrace more than one subject, and that shall be expressed in the title.” The principle involved was the subject of discussion by Mr. Justice Woodward in Matter of Fuller ( 62 App. Div. 428 ), in which a conclusion was reached adverse to the contention of the appellant. The statute in question is not local in character within the meaning of the Constitution. It is an amendment to the general law applicable to the whole State, and simply makes provision for exceptional conditions which obtain in the three largest cities of the State, and evidently contemplates that such change is necessary in order that full force and effect may be given to all the provisions of the act, and that the law may be more efficiently enforced. Under such circumstances it has been repeatedly held that such statute is not obnoxious to the provisions of the Constitution. (People ex rel. Dee v. Backus, 11 App. Div. 147 ; affd. on opinion below, 153 N. Y. 686 .) The statute as it stood before this amendment authorized the surrogate, upon the application of any parties in interest or upon his own motion, to appoint some person to act as appraiser. It would scarcely be claimed that the act in question would be in any sense within the meaning of the constitutional provision a local act if it originally embraced the power to select, such as is contained in the amendment under consideration. The general purpose sought to be accomplished by the law in its entirety is not made local in any sense by a provision which makes the rule applicable to the three largest cities of the State in the appointment of appraisers different from that which obtains in the other counties of the State, for the reason that such amendment does not make the Transfer Tax Law a local act,

"Van Brunt, P. Patterson, Ingraham and McLaughlin, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.