
    William J. Morgan, Comptroller of the State of New York, and Nicholas Grumbach, County Treasurer of Onondaga County, Appellants, v. George B. Warner and Israel E. Britton, as Executors, etc., of John Stolp, Deceased, and Others, Respondents.
    
      Transfer tax decision — the Comptroller may either apply for a reappraisal or may-appeal— notes directed to be canceled and surrendered should be appraised at their-market value — testimony as to value.
    
    Section 232 of the Tax Law (Chap. 908 of the Laws of 1896), authorizing the-Comptroller of the State of New York, within two years after the entry of an order of the surrogate, determining the value of an estate and assessing a transfer tax thereon, to make application to a justice of the Supreme Court for a reappraisal, is not exclusive of other remedy; <and if the Comptroller simply desires a review of the surrogate’s determination, he may appeal from the order, under section 2570 of the Code of Civil Procedure, authorizing an appeal to the Appellate Division from “ an order affecting a substantial right made by a surrogate or by a Surrogate’s Court in a special proceeding.”
    
      Semble, that if the remedy provided by section 232 of chapter 908 of the Laws of 1896 were intended to be exclusive, the section would contravene that provision of the Constitution of 1894 which provides that the jurisdiction of the Appellate Division shall thenceforth be as then exercised by the General Term, in addition to such further jurisdiction as shall be given to that court by statute.
    Where a testator directs his executor to cancel and surrender certain promissory notes to the makers thereof without payment, such notes should, for.the purpose of determining the transfer tax thereon, be appraised at their fair market value and not at their face value.
    
      Testimony of the executor as to declarations of the testator is not competent evidence as to the value of the notes; but his testimony to the effect that -the notes were valueless may properly be considered where no objection is raised upon the -ground that the witness has stated a conclusion of fact.
    Appeal by the plaintiffs, William J. Morgan, Comptroller of the State of New York, and another, from a decree of the Surrogate’s Court of Onondaga county, entered in said Surrogate’s Court on the 27th day of July, 1899, determining the value of the estate of John Stolp, deceased, passing under his will, and fixing the transfer tax to be paid thereupon.
    Upon February 10, 1899, John Stolp, a resident of Onondaga county, died, leaving a last will and testament. At the time of his death he held three notes against four of his grandnephews and grandnieces. By the 4th clause of the decedent’s will the notes and the amounts due thereon were given to the makers of said notes, and the executors were directed to cancel and surrender said notes to the makers thereof without payment. The appraiser appointed valued the said notes at their face value, and upon his report the surrogate determined the value of the interest passing under the will to these legatees as the face value of the notes, and assessed the tax accordingly. The executors under the will and these legatees appealed from that part of the order, and, upon the appeal the surrogate reversed the order in so far as it determined the value of said notes, as of the face value, and thereupon determined the said notes and the interest passing under the will to-be'valueless ; and the said legatees were charged with no tax thereupon. From this determination of the surrogate the Comptroller-has appealed to this court.
    
      John McLennan, for the appellants.
    
      George B. Warner, for the respondents.
   Smith, J.:

The appellant is ..met at the threshold of his argument with the objection that this appeal is unauthorized. By section 232 of chapter 908 of the Laws of 1896 (The Tax Law) the procedure under such assessment is prescribed. Pursuant to that section the determination was first made upon the report of the appraiser, and, upon an appeal from said'determination by the executors and the legatees, the determination was in 'part reversed. :.The statute then provides : “ Within two years after the entry of an order or decree of a surrogate determining the. valué of an estate and assessing the tax thereon, the Comptroller of the State may, if he believe^ 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 in which the former owner of such estate, resided for a reappraisal thereof. The justic'e to whom such application is made -'may thereupon appoint a competent person to reappraise such estate.”

The claim of the respondents is that the Legislature has prescribed a specific mode of review of the determination of the surrogate upon the appeal; that that provision Was intended to be exclusive, and that no right of appeal-from that determination is given by the statute. To sustain this claim he cites a case decided in the, first department (Matter of Smith, 40 App. Div. 480). It was there held that the Supreme Court had no power to vacate an order made by a justice of that court under the foregoing section, directing a reappraisal of the estate of a decedent for the purpose of assessing a transfer tax thereon. ’ In the opinion in that case Justice Rhmsey says: “ What is to be done under that statute is prescribed by the statute, and. must be done as prescribed and by the magistrate who is directed to do it, and the courts generally have no jurisdiction in the matter. In these proceedings they can ,act only as they are authorized to act by the statute.” All that is there held is that no statute authorized the motion that was then, under consideration.

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.. The Comptroller then, if he desires further evidence or further examination of the assets of an estate, may proceed under the Transfer Tax Statute and have a reappraisement under an order of a justice of the Supreme Court. If, however, he desires simply a review of the determination made by the surrogate thereupon, he may have that review upon an appeal. The provision in the Transfer Tax Law for a reappraisal - under the order of a justice of the Supreme Court was made by an amendment to the statute in 1896. If that could be deemed to express an intention of the Legislature that it should be the only method of review of the determination of the surrogate upon said appeal, it would conflict with the provision' of the Constitution of 1894 which provided that the jurisdiction of the Appellate Division should thenceforth be as then exercised by the General Term in addition to such further jurisdiction as should be given to said court by the statute.

Reaching, then, the merits of this ease, we think.the order of the surrogate was right. It is first challenged upon the ground that the finding of the surrogate that the notes were valueless was without evidence. We are satisfied that the testimony of the executor as to the declarations of the testator is incompetent evidence of the value of the notes, and is not proof upon which a finding of the surrogate can be made or sustained. At folios 64‘and 65 of the record, however, the executor swears without qualification that these notes were valueless. This evidence was given without objection. The executor was not cross-examined thereupon. While the witness has stated a conclusion of fact, which under proper objection would have been excluded as improper in form, nevertheless no objection was made. The presumption is that, if the objection had been made, the form of the question would have been corrected to ask for the facts from which this conclusion was drawn. The Comptroller cannot now be heard to say that the fact as to the value of the notes was found without sufficient evidence.

The appellant further contends that, notwithstanding the insolvency of the makers, inasmuch as the notes are given as legacies to the makers themselves, they should be assessed at their face value. It will hardly be claimed that if these notes were given by the will to legatees other than the makers they should not be appraised at’their market value. "Upon this the statute is clear. In chapter 908 of the Laws of 1896, under which this tax is assessed, this rule of appraisal is unmistakably stated. In section 230 provision is made for the appointment of “a competent person as appraiser to fix the fair market value” of property subject to this tax. In section 231 the appraiser “ shall at such time and place appraise the same at its fair market value ^s herein prescribed.” In section 232, “ The surrogate shall forthwith, as of course, determine the cash value of all estates.” In section 222 of the act, “ Every such tax shall be and remain a lien upon the property transferred until paid, and the person to whom the property is so transferred and the * * *" executors * * * of every estate'so transferred, shall be personally liable for such tax Until its payment.” In section 224, the executor is forbidden to deliver the legacy until the payment of the tax, and he has power to sell the property to collect the tax thereon.

The statute, it will be seen, thus plainly provides for the appraisal of all property at its fair market value. No exception is made in cases where promissory notes are given to their makers, and the court is not authorized to read into the statute any such exception. If these views are right, they lead to an affirmance of the order.

All concurred.

Order affirmed, with costs.  