Additional Evidence; New Questions. § 232 fer Tax Act makes no distinction between foreign and domestic executors and administrators; that an appeal is in the nature of a review by the surrogate of the 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; that the right of the executors to appeal even to the Appellate Courts from orders fixing transfer tax was upheld in Matter of Cornell (66 App. Div. 167, 171). 678. Surrogate, on Appeal, May Receive Additional Evidence and Consider New Questions Subsequently Arising. Upon the hearing on an appeal to the surrogate from an order confirming the appraiser's report, the surrogate may, in his discretion, receive evidence upon the questions involved. In the Matter of Westurn, 152 N. Y. 93-104, the court says: "We think the statute ought to be construed so as to permit the raising, upon an appeal, of a question which did not enter into the original determination, and which was first made known after the appeal had been taken and after the expiration of the sixty days. The surrogate had jurisdiction of the appeal by the notice actually given, and it would be unwise construction of the act to limit the hearing so as to exclude the consideration of a new question, subsequently arising, on the ground that it was not specified in the notice of appeal." (Decision, Act 1892.) See also Matter of Bentley, 31 Misc. Rep. 656, 66 N. Y. S. 95. 679. May Receive Evidence that Transfer Was Made in Contemplation of Death. It lies in the power of the surrogate, upon an appeal to him from an order confirming the report of the ap $ 232 The Surrogate's Discretion. praisers and determining the amount of the transfer tax, to receive proof that a transfer of property made by the decedent was made in contemplation of death, and hence was taxable. Matter of Thompson, 57 App. Div. 317, 68 N. Y. S. 18. 680. The Surrogate's Discretion. It is within the discretion of the court to permit the introduction of additonal proof upon the appeal to him. Matter of Kelly, 29 Misc. Rep. 169, 170, 60 N. Y. S. 1005. In the Matter of Thompson, 57 App. Div. 317, 68 N. Y. S. 18, the Appellate Division says: "The whole matter is with the surrogate and continues with him until the final determination after appeal. The purpose of the appeal from the surrogate to the surrogate is not simply to review his former determination. There is no occasion to limit it to that. The beneficial results of such a rehearing would be greatly diminished if the determination of the surrogate could not at that time be treated as so far open as to admit new testimony." 681. Failure of Surrogate to Give Notice Does Not Effect. An appeal from the determination of the surrogate must be taken within sixty days from the time when it was made, whether or not the surrogate has performed his statutory duty of immediately giving notice to all persons known to be interested in the estate of the tax imposed thereon. Matter of Connelly, 38 Misc. Rep. 466-470, 77 N. Y. S. 1032. 682. Accepting Payment as Per Order-Does Not Effect. The receipt by the comptroller of the city of New York of the transfer tax ordered to be paid on a life When Order Becomes Final. § 232 estate does not estop him from appealing from so much of the order as declares that a vested remainder, after the life estate, "is at present undeterminable and is now not subject to tax." Matter of Bogert, 25 Misc. Rep. 466, 55 N. Y. S. 751, following Matter of Lange, N. Y. Law Journal of October 26, 1895. 683. When Order Becomes Final and Conclusive. Where no appeal was taken from the surrogate's order fixing the tax, the surrogate's determination as expressed by that order must be regarded as final and conclusive upon all the questions, both of law and of fact, then presented to him for adjudication. Matter of Lansing, 31 Misc. Rep. 148–154, 64 N. Y. S. 1125; Matter of Schermerhorn, 38 App. Div. 350, 57 N. Y. S. 26. The order fixing the tax on the basis of the original appraisal, is conclusive upon such matters until it is reversed or modified. Matter of Rice, 56 App. Div. 253, 61 N. Y. S. 911, 68 N. Y. S. 1147. 684. Costs on Appeal to the Surrogate. The allowance of costs to the Comptroller on appeal to the surrogate is within the sound discretion of the surrogate, and should not be disturbed except for sufficient cause. Matter of Hoffman, 76 Hun, 399, 27 N. Y. S. 1086. The discretion of the surrogate in awarding costs upon appeals to him from the taxing order was hardly ever exercised until recently, and in order that the practice in this respect might be uniform the Legislature by chapter 310 of the Laws of 1908, amended the section relating to appeals by providing that no costs shall be allowed by the surrogate on such appeals. § 232 Costs; Disbursements. 685. When Costs Not Properly Imposed on Moving Party. Where an order exempting an estate had been made on an ex parte application by the representatives of the estate, and the State Comptroller moved to vacate such order upon affidavits which were not controverted, -held, that costs should not be imposed upon the moving party by an order denying the motion, where counsel for the administrator with the will annexed appeared and made no opposition to the Comptroller's application to vacate the order of exemption. Matter of Collins, 104 App. Div. 184. 686. Costs Governed by Section 3240 of the Code. Costs upon an appeal from a surrogate's decree vacating a transfer tax assessment are governed by section 3240 of the Code of Civil Procedure. If the appellate court awards costs, such costs are, by express provision of the section, allowable at the rates allowed upon an appeal from a judgment, and in the same manner. Matter of Babcock, 86 App. Div. 563, 83 N. Y. S. 1020. 687. Allowance of Costs Carries with It the Disbursements. The order of the appellate court need not specify that disbursements as well as costs were allowed, as, under section 3256 of the Code of Civil Procedure, the award of costs carries with it an allowance of the disbursements specified in such action. Matter of Babcock, 86 App. Div. 563, 83 N. Y. S. 1020. 688. When Costs Will Not Be Awarded. The Appellate Division when reversing an order denying an application, the granting of which was not opposed by the party against whom it was made, will not award costs of the appeal against such party. Matter of Collins, 104 App. Div. 184. To the Appellate Division. 689. Appeal to the Appellate Division. § 232 Under section 1351 of the Code of Civil Procedure an appeal authorized by this title must be taken within thirty days after service upon the attorney for the appellant of a copy of the judgment or order appealed from, and a written notice of the entry thereof. The period of limitation does not begin to run until the prevailing party serves the necessary papers upon the attorney for his adversary. McGruer v. Abbott, 47 App. Div. 191, 62 N. Y. S. 123. It was held in the above case that service of such papers by the defeated party upon the prevailing party, and a written admission of such service by the latter, do not start the period of limitation running. 690. Notice of "Filing" Order Not Sufficient. In re Armstrong, 32 N. Y. St. R. 441, the court held that service of a copy of the decree with notice of filing is not sufficient to limit the time to appeal. What is rerequired is a notice of the entry of the decree, and such entry is defined as a record to be made in a book provided for that purpose. 691. Right to Appeal to the Appellate Division. In the Matter of Hull, 109 App. Div. 248, 95 N. Y. S. 819, a motion was made to dismiss the appeal of the State Comptroller from an order made by the surrogate of Westchester county, reversing an order assessing a transfer tax, on the grounds that the right to take such appeal does not exist and that the court was without 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 Tax Law are ministerial acts within the legislative |