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§ 232

What Appellate Division Will Consider.

scope, and that there can, therefore, be no right of appeal. The court held that a surrogate in assessing a transfer tax acts judicially, not ministerially, and that the Appellate Division has jurisdiction to entertain such an appeal.

692. When Order of Exemption Will be Vacated-Lack of Notice to State Comptroller.

Where an order exempting an estate has been entered without notice to the State Comptroller, even though a lack of notice to the State Comptroller be deemed not a jurisdictional defect available in a collateral attack upon the order, such lack of notice is fatal to the order upon a direct review thereof by appeal. Matter of Collins, 104 App. Div. 184.

693. Appellate Court May Secure Further Testimony or Appoint a Referee.

"Where an appeal is taken upon the facts, the appellate court has the same power to decide the question of fact which the surrogate had, and it may, in its discretion, receive further testimony or documentary evidence, and appoint a referee." Section 2586, Code of Civil Procedure.

The practice in transfer tax cases, where the order or decree of the surrogate is modified, is to remit the report to the appraiser for further testimony or correction in accordance with the opinion of the Appellate Division.

694. Appellate Division Will Only Consider the Grounds of Appeal.

Under section 232 of the Tax Law, as amended by chapter 173, Laws 1901, which provides that the notice

Id.; Exception, Not a Prerequisite.

§ 232

of appeal to a surrogate from a determination fixing the amount of a transfer tax shall state the grounds upon which the appeal is taken, the Appellate Division is confined to a consideration of those grounds upon an appeal from the surrogate's decree. Matter of Kennedy, 93 App. Div. 27; Miller v. Tracy, 86 N. Y. S. 1024.

695. When Failure to Except to Ruling Not a Prerequisite to Review.

Where it is apparent that the ruling excluding evidence may have been very prejudicial to the appellant, the court will not insist upon an exception thereto as a prerequisite to a review. Matter of Brundage, 31 App. Div. 348, 52 N. Y. S. 362.

696. Appellate Division Will Not Interfere with Surrogate's Refusal to Direct a Refund.

Where the surrogate refused to insert in the order vacating the transfer tax imposed upon the estate, a direction to refund the amount of the tax, the court says: "We do not think we ought to interfere with the surrogate's refusal to insert in the order a direction to the State Comptroller to refund the amount of tax. Such provisions are common in orders of this kind, and orders containing them frequently have been affirmed by this court and the Court of Appeals. (Matter of Silliman, 79 App. Div. 98; affd., 175 N. Y. 513; Matter of Scrimgeour, 80 App. Div. 388; affd., 175 N. Y. 507.) It is not at all essential, however, to the preservation or enforcement of the rights of the party entitled to such repayment." Matter of Cameron, 97 App. Div. 436, 437, 89 N. Y. S. 977; affd., 181 N. Y., mem. 49.

§ 232

Appeal to Court of Appeals.

697. Appeal to the Court of Appeals Matters in Surrogate's Discretion-Not Subject to Review.

Where appellants appeal to the Appellate Division from so much of the surrogate's decree as reduced the interest on the unpaid tax from 10 to 6 per cent., and have appealed to the Court of Appeals from the affirmance by the Appellate Division of this provision, the court holds that on this record the matter rested in the discretion of the surrogate, and that said court is not justified in interfering with its exercise. Matter of Cornell, 170 N. Y. 423-426.

698. Appeal-Will Be Dismissed, When.

The Court of Appeals has no power to review decision of Appellate Division reversing surrogate upon the facts.

A question of fact which the Court of Appeals has no jurisdiction to review is involved upon an appeal from an order of the Appellate Division, reversing "upon the facts and the law" a decree of the Surrogate's Court, confirming the appraiser's report levying a transfer tax, where the surrogate rejected, and the Appellate Division accepted, the version of the beneficiary's story most favorable to herself. Matter of Thorne, 162 N. Y. 238, dismissing appeal from 44 App. Div. 8, 60 N. Y. S. 419.

699. Id.; Must Be from a Final Order.

Where the appeal is not from a final order it will be dismissed by the Court of Appeals. Matter of Bishop, 188 N. Y. 635. A stipulation by the appellant and respondent waiving this irregularity in respect to the order appealed from not being a final order, will not save the appeal from dismissal. Matter of Spencer, 190 N. Y. 517.

Id; What Can Be Reviewed on.

8232

In the Matter of Browne, 194 N. Y., Mem., the court says: "While we would have no difficulty in disposing of this appeal on the merits by affirming the order, if the appeal was properly before us, we are of the opinion that the order appealed from is interlocutory, and, therefore, the appeal must be dismissed, with costs."

700. Value of Stock Is a Question of fact

on Court of Appeals.

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When Conclusive

In the Matter of Thayer, 193 N. Y. 430, the surrogate in determining the basis of value of the stock of the Fitchburg Railroad Company belonging to a nonresident decedent had deducted from the total amount of capital stock the sum of $1,812,000 as representing the value of certain ocean terminal at Boston and Somerville, before appraising the stock on a percentage basis of total mileage within this State, and his decision had been affirmed by the Appellate Division. The Court of Appeals held that the appraisal of stock was a question of fact, and the decision of the surrogate on this question of fact having been unanimously affirmed by the Appellate Division it was conclusive, it appearing no error of law was involved.

701. But an Order of Reversal upon the Law and the Facts Is Reviewable When No Question of Fact Is Involved.

Upon an appeal from an order of the Appellate Division reversing a surrogate's decree, upon the law and the facts, where the influences from the uncontradicted evidence all point in one direction, so that a reasonable mind can reach but one conclusion, there is no question of fact, and the Court of Appeals has jurisdiction of the appeal. Matter of Totten, 179 N. Y. 112-116.

§ 232

Appeal to U. S. Supreme Court.

702. When Unanimous Decision of the Appellate Division Is Reviewable.

The provision of the Constitution (art. 6, § 9) and of the Code of Civil Procedure (§ 191), that no unanimous decision of the Appellate Division of the Supreme Court that there is evidence supporting a finding of fact shall be reviewed by the Court of Appeals, has no application to an appeal from an order of the Appellate Division, affirming an order of a surrogate reversing the imposition of a transfer tax where no question of fact was in controversy, and the only question involved was the legal construction of the instrument of transfer and the statute. Matter of Green, 153 N. Y. 223.

703. Appeal to U. S. Supreme Court.

The Supreme Court will not entertain an appeal on constitutional grounds where the record in any State court shall fail to disclose that constitutional questions have been raised therein. Scudder v. The Comptroller of New York, 175 U. S. 32.

704. When Right under Constitution Is "Specially Set Up and Claimed."

Where judicial proceedings in one State are relied upon as a defense to an assessment by the authorities of another State, a right under the Constitution of the United States is specially set up and claimed, though it was not in terms stated to be such a right. Tilt v. Kelsey, 207 U. S. 43.

705. What Necessary to Give U. S. Court Jurisdiction.

In order to give this court jurisdiction of a writ of error to review a judgment which the highest court of a State has rendered in favor of the validity of a

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