In re Hull's Estate

This motion to dismiss an appeal of the State Comptroller from an order made by the surrogate of Westchester county, reversing an order assessing a transfer tax, must be denied. The State Comptroller has a clear right of appeal in this case. The motion is made upon the grounds that the right to take such appeal does not exist, and that this court has not jurisdiction to hear and determine such appeal; the argument being based upon the theory that the power of taxation being vested in the legislative department, all of the acts of the surrogate .under the provisions of the tax law are ministerial acts within the legislative scope, and that there can therefore be no right of appeal.

It is perfectly true, of course, that the power of taxation is one which belongs to the legislative department, and it is equally true that some of the functions of a taxing officer are ministerial; but it is well established by authority that in determining the value of the property assessed, the extent of claims to exemption, etc., the taxing officer or board acts judicially. McLean v. Jephson, 123 N. Y. 142 , 149, 25 N. E. 409 , 9 L. R. A. 493 , and authority there cited; Stanley v. Supervisors of Albany, 121 U. S. 535 , 550, 7 Sup. Ct. 1234 , 30 L. Ed. 1000 ; City of New York v. McLean, 170 N. Y. 374 , 383, 63 N. E. 380 , and authorities there cited. To the extent that the surrogate acts judicially in determining the amount of tax to be imposed upon the privilege of receiving transfers of property, there can be no doubt that there is a right of appeal, according to the theory of the learned counsel for the relator; and it must be presumed upon this motion that the appeal relates to the judicial acts of the surrogate. This would be true upon principle, but it has been judicially held that, under the provisions of section 2570 of the Code of Civil Procedure, an appeal of this very kind might be taken to the Appellate Division of the Supreme Court. In Morgan v. Warner, 45 App. Div. 424 , 60 N. Y. Supp. 963 , the question was fairly raised that the court was not authorized to entertain the appeal; it being urged that a different mode had been ■provided. The court, after reviewing the question, say:

“But this appeal need not necessarily rest upon that single statute.”^If ■other statutes exist which are applicable thereto, they must be read in connection with the statutes; they together prescribing the mode of determination ■of this tax and also the mode of review. By section 2570 of the Code of ■Civil Procedure it is provided: ‘An appeal to the Appellate Division of the Supreme Court may be taken from a decree of the Surrogate’s Court or from •an order affecting a substantial right made by a surrogate or by a Surrogate’s Court in a special proceeding.’ This proceeding would seem to come within the purview of that section, and the order made by the surrogate from which this appeal is taken, involving, as it does, a substantial right, may be reviewed under this section by the Appellate Division.”

'This view of the question was adopted by the Court of Appeals, which affirmed on the opinion of the court below. Morgan v. Warner, 162 N. Y. 612 , 57 N. E. 1118 .

A transfer tax is a tax upon the privilege of inheritance (Matter of Vanderbilt, 172 N. Y. 69 , 73, 74, 64 N. E. 782 , and authorities there cited), and the Legislature has very properly given jurisdiction to the Surrogate’s Court, through which the estates of decedents must pass, to determine the amount of tax to be collected upon the property

The motion to dismiss the appeal in this matter should be denied, with costs. All concur.