In re Smith's Estate — 58 N.Y.S. 128

Majority

p. 128

(40 App. Div. 480.)

In re SMITH’S ESTATE.

(Supreme Court, Appellate Division, First Department.

May 19, 1899.)

Headnote

Transfer Tax—Reappraisal op Estate—Review—Supreme Court—Jurisdiction.

Since Laws 1896, c. 908, § 232, providing that, within two years after appraisal of an estate by a surrogate, it may be reappraised, by order of a justice of the supreme court, does not provide for a review of the order of appraisal, the supreme court has no jurisdiction to set aside an order of reappraisal made by a justice.

Appeal from special term, New York county.

In the matter of the reappraisal of the estate of Elizabeth H. Smith, deceased. Heard on appeal from an order of the special term vacating and setting aside an order of reappraisal.

Reversed.

Argued before VAN BRUNT, P. J., and BARRETT, RUMSEY, and PATTERSON, JJ.

W. E. Kisselburgh, Jr., Asst. Atty. Gen., for appellant state comptroller.

Stillman F. Kneel and, for respondent.

Mrs. Elizabeth Smith died on the 2d of March, 1897, leaving, among other property, 1,382 shares of the 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 ex parte order directing a new 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 improvidently made; and upon that motion the court made an order that the order of reappraisal dated October 12,1898, b.e 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 exercised 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 that:

“Within 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 an application to a justice of the supreme court of the judicial district in which the former owner of such estate resided, for a re-appraisal thereof. The justice to whom such application is made, may thereupon appoint a competent •person to re-appraise such estate.” •

There are no other statutory provisions on this subject. The 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 $10 costs, and disbursements of the appeal, and the motion denied, with $10 costs. All concur.