In re the Appraisal under the Taxable Transfer Laws of the Estate of Babcock

Majority

p. 563

In the Matter of the Appraisal under the Taxable Transfer Laws of the Estate of Amelia N. Babcock, Late of the Town of Deposit, Delaware County, Deceased. The Comptroller of the State of New York, Appellant; William E. Brown, Individually and as Executor, etc., of Amelia N. Babcock, Deceased, Respondent.

Headnote

Costs upon an appeal from a surrogate’s decree vacating a transfer tax assessment — they are governed, Try Code Civ. Proc. § 3240 — the order allowing them, need not specify the items allowed nor fix the rates—disbursements may be taxed although, not expressly allowed — costs on appeal from an interlocutoi'y order, by what Code provisions governed.

A decree of a surrogate vacating and setting aside the assessment of a transfer tax theretofore made by him is a final order in a special proceeding, and the costs which may he awarded upon an appeal therefrom are governed' by section 3240 of the Code of Civil Procedure. "

p. 564

■If the.appellate court awards costs, such costs are by the express provisions of the section allowable at the rates allowed upon an appeal from a judgment, and in the same manner; the order of the appellate court need not, therefore, specify the items of costs allowed nor the rates at which they shall be allowed, hut the amount of such costs should be fixed on a taxation thereof by the surrogate. The order of'the appellate court need not specify that disbursements : ■ as. .well .as costs were allowed, as under section 3356 of the Code of Civil Procedure the award of costs carries with it an allowance of the disbursements specified in such section.

' Semble, that the costs upon an appeal from an interlocutory order are governed by section 3336 and subdivision 3 of section 3351 of the Code of Civil ! . Procedure.. . .

• Motion by .the appellant, the Comptroller of the State of New York, to. correct an order of the Appellate Division which affirmed a decree of the Surrogate’s-Court of the county of- Delaware, entered in gaid; Surrogate’s Court on the 23d day of September, 1901, by specifying the amount of. costs and. disbursements intended and .allowedby said order of affirmance. . ..

A proceeding was instituted under the provisions of' the Transfer Tax Law (Laws of 1896, chap. 908, art. 10, as ámd.) before-the surrogate of Delaware county to assess the tax upon the property devised-and-bequeathed by the will of •'Amelia'M.'Babcock, deceased. On September 23, 1901, such surrogate, upon the report of an appraiser duly appointed in such proceeding, made an order decreeing that the property was amenable to the tax and assessing the amount -thereof upon the several legatees named in the -will. •' Thereafter an appeal was taken by parties interested from such assessment'to said surrogate who made arid entered a final ord$r or decision vacating and setting aside; the assessment so made. From .this decision the Comptroller of the State appealed to this court, where the decree of the surrogate was in all respects affirmed, with costs to appellant against the respondént. Thereafter the appellant’s effort to ta-x his costs upon such appeal, ■as from a judgment in an action, and to have the surrogate "make such' order as was necessary to give effect to the same, was resisted by the respondent on the ground that under the order of affirmance the appellant was not entitled to any costs for the reason that the amount or rate thereof was not fixed by the appellate court, and that he was not entitled to any disbursements

p. 565

because none whatever were given by said order of affirmance. It, was also claimed by the respondent that no more than ten dollars could'be lawfully awarded as costs upon said appeal. The surrogate held that such objection was well taken, and the appellant thereupon makes this motion, to this court to correct its order of affirmance so as to specify the amount of costs and disbursements intended and allowed thereby.

Curtiss, Arms c& Keenan, for the motion.

Barna Johnson, opposed.

The order which we are now asked to resettle was made on an appeal taken from a final order in a special proceeding, and the provisions of section 3240 of the Code are, therefore, applicable to it. Under such section the question whether the appellate court should or should not award costs to the prevailing party was one resting in its discretion. When so awarded the section itself provides that they shall be at the. rates allowed upon an appeal from a judgment taken tó the same court and in like manner. When, therefore, this court determined that costs should be awarded to the appellant, and so directed in its order of affirmance, it was not necessary, for it tó specify the rate nor the items which were so allowed; they were to be ascertained in the same manner that costs on appeal from a judgment are ascertained, viz., by taxation. Ueither was it necessary to specify that disbursements as well as costs were awarded, for, under the provisions of section 3256 of the Code, the award of costs carries with it certain disbursements therein particularly specified, and so far as they are therein specified the appellant may tax them as a part of the costs which this court awarded him.

The authorities relied upon by the respondent’s attorneys and' by the surrogate are in cases where the order of affirmance was made upon an appeal taken from a mere order incidental to the proceeding, and in no sense a final one, and. what is said in those cases has reference to such situation only. In those cases section 3236 and subdivision 3 of section 3251 of the Code control.. . ; ■ -.

The ordervof this court, as handed down, therefore, expressed all that was necessary to authorize' the appellant to tax his costs and

p. 566

disbursements as on appeal from a judgment in an action, and this application to amend or resettle such order is- not necessary and-must be denied. On its face it is authority to the surrogate of Delaware county to tax the costs as above suggested and to authorize the surrogate to make such order as was necessary to give effect tó the amount so fixed.

The appellant having made the proper claim and been denied it by the respondent, no costs are allowed against him on this motion-

All concurred;

Motion denied, without costs to either party. ,