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In re Seymour's Estate

128 N.Y.S. 775 Court N.Y. App. Div. Decision date 1911-04-07 English

Delivered by SCOTT, J.

Contents

Majority

p. 775
In re SEYMOUR’S ESTATE.
(Supreme Court, Appellate Division, First Department.
April 7, 1911.)

Headnote

1. Taxation (§ 900[1] )—Transfer Tax—Assessment—Appeal.
Under Code Civ. Proc. § 7S4, forbidding any court from extending the time fixed by law within which an appeal must be taken, neither the Appellate Division nor the Surrogate’s Court may extend the time fixed by Transfer Tax Daw (Consol. Daws 1909, c. 60) § 2J>2, within which an appeal from an assessment of the tax must be taken, and where notice of appeal from an assessment is not given in time, an appeal does no> become effective, and the court acquires no jurisdiction.
[Ed. Note.—For other cases, see Taxation, Dec. Dig. § 900.[1] ]
2. Taxation (§ 900[1] )—Transfer Tax—Assessment—Appeal.
The admission by the attorney of the State Comptroller of service of notice of appeal from an assessment of the transfer tax is not a waiver of the failure to give the notice of appeal within the time fixed by Transfer Tax Daw (Consol. Daws 1909, c. 60) § 232, and jurisdiction on appeal is not thereby acquired.
Appeal from Surrogate’s Court, New York County.
In the matter of the transfer tax on the estate of George F. Seymour, deceased. From an order of the Surrogate’s Court, affirming an order confirming report of appraisers, the party aggrieved appeals. Affirmed.
p. 776
Argued before INGRAHAM, P. J., and McLAUGHLIN, SCOTT, CLARKE, and DOWLING, JJ.
Edgar N. Dollin, for appellant.
Henry A. Miller, for respondent.

If the appeal to the surrogate had been taken in due time, we should be disposed to hold that the executors might be relieved from their stipulation. It is unnecessary, however, to discuss that question, because an appeal was not taken in time, and neither this court nor the Surrogate’s Court has authority to extend the statutory time within which an appeal must be taken.

[1] Section 232 of the transfer tax law (Consol. Laws 1909, c. 60) prescribes how and within what time an appeal in a case like the present may be taken. The appeal is taken by filing in the office of the surrogate a notice of appeal, and to be effective such notice must be filed within sixty days from the fixing, assessing, and determination of the tax. The appellants in the present case did not file their notice of appeal in time, and consequently the appeal never became effective, and the surrogate never acquired jurisdiction to hear it. Section 784, Code of Civil Procedure, expressly forbids any court or judge to extend the time fixed by law within which an appeal must be taken, and the courts have invariably refused to do so. Wait v. Van Allen, 22 N. Y. 319 ; Kelly v. Sheehan, 76 N. Y. 325 ; Clapp v. Hawley, 97 N. Y. 610 .

[2] The admission of service of the notice of appeal by the attorney of the State Comptroller cannot be accepted as a waiver of the default in appealing, for the validity of the appeal depended, not upon service of notice thereof upon the attorney, but upon timely filing of the notice in the surrogate’s .office.

The order appealed from must be affirmed, with $10 costs and disbursements. All concur.

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