
    In the Matter of the Transfer Tax upon the Estate of Leon Cohen, Deceased. State Tax Commission, Appellant; Lewis T. Cohen and Another, as Executors, etc., of Leon Cohen, Deceased, Respondents.
   Order of the Surrogate’s Court of Kings county, dated December 2, 1932, exempting from the transfer tax on the estate of Leon Cohen, deceased, the sum of $4,000 provided in the will of the testator for the perpetual care of his burial lot and the graves and monuments therein in Machpelah Cemetery, and order dated March 10, 1934, fixing and assessing the transfer tax, unanimously affirmed, in so far as appealed from, with costs. The question of exemption of the cemetery association on the ground that it was a non-stock corporation organized purely for benevolent and charitable purposes and not operating for profit was properly before the court on the last appeal to the surrogate, although it was not specifically mentioned in the original notice of appeal by the executors. The order that was entered on December 9, 1931, remitted the matter to the appraiser for amendment and correction in accordance with this order, which recited two grounds of exemption. This order recites that the attorney for the State Tax Commission had withdrawn his objections to the allowance of the appeal and appeared but did not oppose the granting of the order. If the attorney wished to limit the scope of the order on the retaxation by the appraiser he should have so stated and insisted that the order to be entered should be so limited. Apparently the proceeding was continued without raising this objection and the defect, if any, in the original notice of appeal was waived. Even though there were no waiver, the exemption can be sustained on the ground that it was a part of the reasonable funeral expenses of the testator as directed by him under the provisions of his will. (Surr. Ct. Act, § 314, subd. 3; Matter of Meek, 113 Misc. 301.) Present — Hagarty, Scudder, Tompkins, Davis and Johnston, JJ. [150 Mise. 17. See, also, Id. 534.]  