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[§ 232, Tax Law.] The state comptroller or any person dissatisfied with the appraisement or assessment and determination of tax may appeal therefrom to the surrogate within sixty days from the fixing, assessing and determination of tax by the

1. Chap. 908, Laws 1896-in effect June 15 of that year. Section 232 first authorized the State Comptroller to appeal from the appraisement or assessment of tax.

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2. Chap. 483, Laws 1885 in effect June 30 of that year. 13 provided for appeals by any person dissatisfied with the appraisement or assessment on paying or giving security to pay costs and the tax that shall be fixed by the court.

§ 232

When Comptroller Can Have Reappraisal.

surrogate as herein provided, upon filing in the office of the surrogate a written notice of appeal, which shall state the grounds upon which the appeal is taken; but no costs shall be allowed by the surrogate on such appeal.*

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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 state comptroller may, if he believes that such appraisal assessment or determination has been fraudulently, collusively, or erroneously made, make application to a justice of the supreme court of the judicial district embracing the surrogate's court in which the order or decree has been filed, for a reappraisal thereof. The justice to whom such application is made may thereupon appoint a competent person to reappraise such estate. Such appraiser shall possess the powers and be subject to the duties of an appraiser under section two hundred and thirty and shall receive compensation at the rate of five dollars per day for every day actually and necessarily employed in such appraisal. Such compensation shall be payable by the state comptroller or county treasurer out of any funds he may have on account of any tax imposed under the provisions of this article, upon the certificate of the justice appointing him. The report

3. Chap. 399, Laws 1892-in effect May 1 of that year. Section 13 first provided for filing written notice of appeal in the office of the surrogate and providing further that the grounds of the appeal must be stated in said notice. This amendment repealed the provision as to giving bonds for costs, etc., by the appellant.

4. Chap. 310, Laws 1908-in effect May 18 of that year. — Added the provision that no costs should be allowed on the appeal to the surrogate.

Section

5. Chap. 908, Laws 1896-in effect June 15 of that year. 232 first contained this provision in reference to reappraisal where former appraisal was erroneously or fraudulently made.

6. Former section 232 provided that application for reappraisal should be made to a justice of the judicial district "in which the former owner of such estate resided."

By Chap. 310, Laws 1908 - - in effect May 18 of that year. This provision was amended so that application for reappraisal under this seetion must be made to a justice of the judicial district "embracing the Surrogate's Court in which the order or decree has been filed," as the former provision would not apply to a nonresident estate in which it was desired to have a reappraisal.

7. Chap. 173, Laws 1901 in effect April 1 of that year. compensation of the appraiser $5 per day.

Makes the

When Second Appeal Not Permitted.

§ 232

of such appraiser shall be filed with the justice by whom he was appointed, and thereafter the same proceedings shall be taken and had by and before such justice as are herein provided to be taken and had by and before the surrogate. The determination and assessment of such justice shall supersede the determination and assessment of the surrogate, and shall be filed by such justice in the office of the state comptroller, and a certified copy thereof transmitted to the surrogate's court of the proper county.

657. Nature of Appeal to Surrogate.

An appeal to the surrogate is in the nature of a review by the surrogate of proceedings had under his own authority, and affords the parties their first opportunity to invoke the surrogate's judgment upon the correctness of the results reached in such proceedings. Matter of Dotger, N. Y. Law Journal, February 19, 1907. Surrogate Thomas.

658. Second Appeal from Same Taxing Order by Party to the First Appeal Is Not Permitted.

When the Court of Appeals has directed the modification of a surrogate's taxing order fixing a transfer tax, a party to that appeal cannot thereafter raise de novo any of the questions which were determined or which might have been determined, by a second appeal taken within sixty days from the entry of the taxing order. The principal is stated by Mr. Nichols in his work on New York practice in which he says (section 2528): "An appeal cannot be taken from a judgment or order by piece meal, i. e., separate appeals cannot be taken from different parts of a judgment or order. A fortiori, there is no authority for two concurrent appeals from the same judgment by the same party, on the same question." Motion to dismiss the second appeal should have been granted

§ 232

Who Can Appeal; Executor's Right to.

by the surrogate. Matter of Cook, 125 App. Div. 114; affd., 194 N. Y. 400.

659. Who Can Appeal.

The State Comptroller, or any person dissatisfied with the appraisement, or assessment and determination of tax, may appeal therefrom. (§ 232.)

It was held, in the Matter of Blackstone, 69 App. Div. 127, that the comptroller of the city of New York has authority to prosecute an appeal from an adverse decision of the surrogate rendered in transfer tax proceedings instituted by such comptroller, although the powers and duties in respect thereto have devolved upon the State Comptroller. Affirmed, 171 N. Y. 682; Blackstone v. Miller, 188 U. S. 189.

In the Matter of Arnett, 49 Hun, 599, 2 N. Y. S. 428, it was held that the district attorney may appeal from the decision of the surrogate on the judicial settlement of the accounts of the executors, on behalf of the people, on the ground that the transfer tax has not been imposed and paid.

660. Executor's Right to Appeal.

The executor as such is entitled to appeal from an order and decree fixing a transfer tax, as he is made personally liable for the tax. Matter of Cornell, 66 App. Div. 162–171, 73 N. Y. S. 32; modified in other respects, 170 N. Y. 423.

661. Id.; It Is the Executor's Duty to Protect the Legatee by Appeal.

Where the will charges the payment of transfer tax upon the residuary estate, and it appears that payment of the tax has been made to secure the discount, the fact that the residuary legatee does not appeal

Id.; Only Parties Aggrieved.

§ 232

from the taxing order in no way affects the right of the executor to appeal, for it is his duty to protect the legatee from an excessive assessment. Matter of Dotger, N. Y. Law Journal, February 19, 1907. Surrogate Thomas.

662. Id. Only Parties Aggrieved, However, May Appeal.

Where the executor and all the interested parties under a will have united in submitting a question in controversy to the Appellate Division, and none of the parties interested as legatees or remaindermen have appealed from its judgment, the executors have no such direct interest as will entitle them to take an appeal to the Court of Appeals. Isham v. N. Y. Association for Poor, 177 N. Y. 218.

663. Appeal Does Not Operate as a Stay of Application for a Refund.

Where an order has been reversed or modified, and the Comptroller appeals to the Appellate Division and Court of Appeals therefrom, such appeals do not operate as a stay of the application of the executors for a refund under section 225 of the Transfer Tax Law requiring such application to be made within one year from the reversal or modification of the taxing order. Matter of Cameron. Application of executors for mandamus to compel refund denied. Justice Hasbrouck. See ante, page 352.

664. Right to Appeal Not Affected by Apparent Inability to Collect Tax If Transfer Is Taxable.

Property should be appraised and the transfer taxed, although it is not apparent how the tax can be collected, and where the State Comptroller appeals from an order of the Surrogate's Court determining that

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