Id.; Former Acts Relating to.

§ 233

cient to pass the estate, a prior compromise made under section 230-a of the Tax Law, determining the amount of the transfer tax, made by the executors of the will and the State Comptroller, is void and not binding upon the claimant, for her interests were not represented by the executors when making the compromise. The Court of Appeals reversed the decision of the Appellate Division, stating, however, in reference to the composition agreement that, "While the principal argument before us has been devoted to the question whether the compromise made between the executor and the Comptroller can now be set aside or attacked collaterally, we do not find it necessary to consider the question since we are of the opinion that, giving full effect to the judgment in the Supreme Court action, nevertheless the estate is liable to the transfer tax." Matter of Kidd, 188 N. Y. 274.

746. Corresponding Sections of Former Acts Relating to Composition Agreements.

Section 230 of the Act of 1896, as amended by chapter 284, Laws 1897, in effect April 16th of that year, provided that when property was devised or bequeathed in trust for persons in succession who are not liable at the same rate, that an agreement could be made between the persons therein named to compromise such taxes upon such terms as may be deemed equitable and expedient, but this provision was omitted by chapter 76, Laws 1899, amending section 230 of that year, and a new provision was enacted as an independent statute by chapter 379, Laws 1900, in effect April 11th of that year, providing for the composition of transfer taxes upon certain estates. This provision by chapter 173 of the Laws of 1901, in effect April 1st

234

Surrogate's Assistants in Certain Counties.

of that year, became section 230-a of the Transfer Tax Law and was re-enacted under section 233 by chapter 368, Laws 1905, in effect June 1st of that year.

747. Surrogate's Assistants in New York, Kings and Other Counties.

[§ 234, Tax Law.] The state comptroller1 may, upon the recommendation of the surrogate, appoint, and may at pleasure remove assistants and clerks in the surrogate's offices of the following counties, at annual salaries to be fixed by him not to exceed the amounts hereinafter specified:

1. In New York county, a transfer tax assistant, four thousand dollars; a transfer tax clerk, two thousand four hundred dollars; an assistant clerk, eighteen hundred dollars; a recording clerk, thirteen hundred dollars; a stenographer, eight hundred dollars; and shall be entitled to expend not more than seven hundred and fifty dollars a year in such office for expenses necessarily incurred in the assessment and collection of taxes under this article.2

2. In Kings county, a transfer tax assistant, four thousand dollars; a transfer tax clerk, two thousand dollars; an assistant clerk, fifteen hundred dollars; and shall be entitled to expend not more than five hundred dollars a year for expenses necessarily incurred in the assessment and collection of taxes under this article.

1. Chap. 368, Laws 1905 — in effect June 1 of that year. — Provides for the appointment and removal of assistants and clerks in the surrogate's office of the counties named in section 234, by the State Comptroller, upon the recommendation of the surrogate. Prior to this the surrogate could appoint and remove such assistants.

2. Chap. 399, Laws 1892-in effect May 1 of that year.First provided for a transfer tax assistant and other clerks above named in the

surrogate's office in New York county. This provision was formerly a part of section 233 of chapter 908 Laws 1896, said section providing also for the appointment of assistants for the district attorney in New York and Erie counties, which had been previously authorized by chapter 515, Laws 1895, in effect May 2 of that year. This latter provision was omitted by chapter 173, Laws 1901, and by the Act of 1905, former sections 233 and 234 were united in section 233 (supra).

Chap. 312, Laws 1908-in effect May 18 of that year. - Allows $750 in place of $500 for expenses in assessment and collection of taxes. 3. Chap. 908, Laws 1896-in effect June 15 of that year. - Section 234 first provided for transfer tax clerks and assistants in Kings county.

3. In Erie county, a transfer tax clerk, eighteen hundred dollars.

4. In Westchester county, a transfer tax assistant, two thousand five hundred dollars.*

5. In Albany county, a transfer tax clerk, one thousand dollars.

6. In Queens county, a transfer tax clerk, one thousand dollars."

7. In Onondaga county, a transfer tax clerk, twelve hundred dollars.

8. In Monroe county, two transfer tax clerks, seven hundred and fifty dollars each; and shall be entitled to expend not more than two hundred dollars a year for expenses necessarily incurred in the assessment and collection of taxes under this article."

9. In Dutchess county, a transfer tax clerk, nine hundred dollars."

10. In Oneida county, not more than two transfer tax clerks, twelve hundred dollars in the aggregate.*

11. In Suffolk county, a transfer tax clerk, one thousand dollars.*

12. In Ulster county, a transfer tax clerk, seven hundred and twenty dollars.*

By chapter 173, Laws 1901, section 234, was amended so as to include the various provisions respecting the transfer tax clerks and assistants in the other counties having such clerks.

4. Chap. 173, Laws 1901-in effect April 1 of that year. - Provided for a transfer tax clerk in Westchester, Suffolk, Oneida, Ulster, Onondaga, Erie, and Albany counties, and also included Kings and Monroe counties, in which transfer tax clerks had been appointed by an earlier law.

By chap. 699, Laws 1906-in effect June 2 of that year. The salary of transfer tax assistant in Westchester county was increased from $2,000 to $2,500.

5. Chap. 368, Laws 1905-in effect June 1 of that year. vides for a transfer tax clerk in Queens county.

- First pro

First pro

6. Chap. 952, Laws 1896-in effect May 28 of that year. vided for two transfer tax clerks in Monroe county and for annual expenses as above. This provision was included in the amendment by chapter 173, Laws 1901.

7. Chap. 283, Laws 1902-in effect March 29 of that year. - First provides for a transfer tax clerk in Dutchess county. This provision

was included in the amendment by chapter 368, Laws 1905.

§ 234

Surrogate's Assistants Appointment of.

Such salaries and expenses shall be paid monthly by the state comptroller, upon proper vouchers, out of any funds in his hands on account of taxes collected under this article.

748. Appointment of Transfer Tax Assistants-Joint Action of Comptroller and Surrogate Necessary.

Under section 234 of the Tax Law, as amended by chapter 368 of the Laws of 1905, the State Comptroller has no right to appoint a transfer tax assistant for the county of Westchester without the recommendation and joint action of the surrogate thereof. Such recommendation, however, is not mandatory or compulsory on the Comptroller. If he sees fit to accept the recommendation of the surrogate and make the appointment, then both officials have jointly cooperated in making the appointment as provided by the statute. If, on the other hand, the recommendation is not satisfactory to the Comptroller, he is not compelled to accept it and make the appointment, and the position remains vacant. Thus the Comptroller is invested with power in and over the appointment which will secure services satisfactory to his office. Matter of Duell v. Glynn, 191 N. Y. 357.

749. Mandamus Will Not Be Granted to Compel Comptroller to Act on the Recommendation of Surrogate.

Where upon the application for a peremptory writ of mandamus to compel the State Comptroller to appoint the petitioner to the position of transfer tax assistant in the office of the surrogate of Westchester county, it appears that theretofore the Comptroller, without action or recommendation by the surrogate, had made an appointment to such office from an eligible list furnished him by the State civil service rommission, and that thereafter such surrogate had

Where Tax Remains Unpaid.

§ 235

recommended to the Comptroller the appointment of the petitioner, who stood lower on said list, which he declined to make, the denial of the application is proper; while the Comptroller's appointment was illegal and unauthorized, the petitioner cannot compel the Comptroller to act on the recommendation and appoint him. Matter of Duell v. Glynn, 191 N. Y. 357, affg. 122 App. Div. 314.

750. Corresponding Sections of Former Acts Relating to Surrogates' Assistants, etc.

Former sections 233 and 234, respecting the surrogates' assistants in New York and other counties, were consolidated and amended by chapter 368, Laws 1905, and re-enacted under section 234 of the Act of 1905.

By the Act of 1905 aforesaid, the State Comptroller is authorized, upon the recommendation of the surrogate, to appoint, and may at pleasure remove the assistants and clerks in the counties of New York, Kings, Erie, Westchester, Albany, Queens, Onondaga, Monroe, Dutchess, Oneida, Suffolk, and Ulster counties. Prior to this amendment the surrogates of the counties named were authorized to appoint and at pleasure remove such assistants.

751. Proceedings by District Attorneys.

[§ 235, Tax Law.] If, after the expiration of eighteen months from the accrual of any tax under this article,' such tax shall remain due and unpaid, after the refusal or neglect of the persons liable therefor to pay the same, the state comptroller 2

1. Chap. 368, Laws 1905 in effect June 1 of that year. - First limited time when proceedings were to be commenced under this provision. 2. Chap. 368, Laws 1905-in effect June 1.- First names State Comptroller as the only person to notify the district attorney of the failure to pay tax.