Hyperlawhypertext legal database In re Victor 144 N.Y.S. 918

← Cases

In re Victor

144 N.Y.S. 918 Court N.Y. App. Div. Decision date 1913-12-26 English

Contents

Majority

p. 918
In re VICTOR.
(Supreme Court, Appellate Division, First Department.
December 26, 1913.)

Headnote

Taxation (§ 900[1] )—Transfer Taxes—Appeals.
Under Tax Law (Consol. Laws 1909, c. 60) §§ 231, 232, providing that upon the report of the appraiser the surrogate shall determine the cash value of the property and that any person dissatisfied may appeal therefrom to the surrogate within 60 days, the surrogate in determining the cash value of the property transferred is merely a taxing officer, and no appeal from his determination will lie to the Appellate Division, but the appeal must be taken to the Surrogate Court.
[Ed. Note.—For other cases, see Taxation, Cent. Dig. §§ 1722,1723; Dec. Dig. § 900.*]
In the matter of the transfer tax upon the estate of George Frederick Victor, deceased. Appeal by the comptroller from an order of
p. 919
the surrogate fixing the cash value of the property transferred and the amount of the tax. On motion to dismiss.
Appeal dismissed.
Argued before INGRAHAM, P. J., and CLARKE, SCOTT, DOW-LING, and HOTCHKISS, JJ.
David Leventritt, of New York City, for the motion.
George Thoms, of New York City, opposed.

It appears that on December 2, 1912, the report of the appraiser fixing the amount upon which the tax was to be imposed was filed, and the usual order confirming the report was filed on January 6, 1913. Both the comptroller and the executors appealed to the surrogate, both appeals were heard, and by an order entered May 17, 1913, the appeal of the comptroller was overruled, and the appeal of the executors sustained in part, and the matter was remitted to the appraiser for correction and further action. The appraiser made a supplemental amended report, and the surrogate made the usual order of course fixing the cash value of the property transferred and the amount of the tax. No appeal was taken from this order to the surrogate, and apparently the time in which to appeal was allowed to expire ; whereupon the comptroller appeals from this last order entered on July 11, 1913, and the respondents move to dismiss the appeal.

Section 231 of the Tax Law (Consol. Laws 1909, c. 60) provides that, upon the report of the appraiser and other proof, the surrogate shall determine the cash value of the property and give notice to the executors and persons interested. Section 232 of the Tax Law provides that any person dissatisfied with the appraisal or assessment may appeal therefrom to the surrogate within 60. days, upon filing in the office of the surrogate a written notice of appeal. This seems to be the only provision in the Tax Law which allows an appeal. The order was entered of course, without notice. It was held in the Matter of the Estate of Catharine L. Wolfe, Deceased, 137 N. Y. 205 , 33 N. E. 156 , that the surrogate was simply a taxing officer; and in the Matter of Costello, 189 N. Y. 288 , 82 N. E. 139 , that the proper proceeding to review the surrogate's decision as taxing officer was to appeal to the surrogate, and no appeal from the order of the surrogate as a taxing officer was allowable except as provided for by the Tax Law. And in that case an order of the Appellate Division dismissing the comptroller’s appeal from the decision of the surrogate acting as a taxing officer was affirmed. No appeal therefore lies from the surrogate’s order as a taxing officer, and this appeal must be dismissed.

Motion granted, with $10 costs.

Cases cited