
    (29 Misc. Rep. 550.)
    In re NIVEN.
    (Supreme Court, Special Term, New York County.
    November, 1899.)
    Transfer Tax—Reappraisement—Error of Fact.
    Failure of the appraiser to tax a bequest, under a mistaken theory that it was not subject to the transfer tax, is not a “fraudulent, collusive or erroneous determination,” within Laws 1896, c. 908, § 232, permitting a reappraisement in such cases. The statute contemplates only errors of fact.
    
      In the matter of the estate of Maria Louisa Niven, deceased. Application by the state comptroller for a reappraisal of a legacy subject to transfer tax. Denied.
    E. H. Fallows, for the motion.
    Anderson & Anderson, opposed.
   BOOKSTAVER, J.

This is an application made by the state comptroller for a reappraisal under section 232 of chapter 90S of the Laws of 1896. The facts upon which the application is based are as follows:

In June, 1896, Maria Louisa Niven died, leaving a will which, in one of its clauses, provided as follows:

“I give and bequeath to my friend and legal adviser, Ohauncey M. Depew, as a marie of affection, esteem, and recognition of his devotion to my interests for many years, §200,000.”

Mr. Depew and two other legatees under the will were made executors, and a provision was made that, in view of such bequests, no commissions should be charged by the executors. Subsequently an appraisal of her estate was had, and in his report the appraiser finds:

“I further report that the legacy passing to Ohauncey M. Depew for services rendered testatrix during her lifetime, and in lieu of commissions, is not subject to said tax.”

And on December 3,1897, this report was confirmed by an order of the surrogate. No appeal was taken from this order, for the reason that at the July term of 1897 the appellate division had decided (In re GouId, 19 App. Div. 352, 46 N. Y. Supp. 506) that a legacy in payment of a debt due for services rendered the testator was not subject to a transfer tax. But in October, 1898, the court of appeals (156 N. Y. 423, 51 N. E. 287) reversed that decision, and held that such a bequest was taxable, although it was in payment of a debt. The comptroller now, in the light of the last decision, seeks to reopen the question of the appraisal of the bequest mentioned, basing his petition upon section 232, c. 908, Laws 1896, which in part provides that:

“Within two years after the entry of an order or decree of a surrogate determining the value of an estate and assessing the tax thereon, the comptroller of the state may, if he believes that such an 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 justice to whom such application is made may thereupon appoint a competent person to reappraise such estate.”

The counsel for the comptroller claims that the former appraisal was erroneously made, and that this application comes within the section just quoted. The counsel for the legatee contend, on the other hand, that only errors of fact were intended to be covered by that section, while the error in this case was one of law, that should have been corrected by an appeal,—a remedy which, by an earlier provision of the same section, is given to any party» who feels aggrieved by the surrogate’s decision. That the latter view is the correct one, I am satisfied. That the error in this case was purely one of law is evidenced from the finding of the appraiser. So far from there being an “appraisal, assessment or determination * * * erroneously made,” there was none made at all, for the reason that both appraiser and surrogate took the view, which ultimately proved to be mistaken, that none was necessary. It should be observed that the word “determination,” as used in the statute, takes its meaning from the words immediately preceding, namely, “order or decree of a surrogate determining the value of an estate.” No reported case in this state is called to my attention, although it is stated in the excellent and instructive brief of the comptroller’s counsel that, immediately after the enactment in question, Mr. Justice Herrick granted an order for a reappraisal of the McKensie estate on the ground that shares of stock in a foreign corporation had been erroneously appraised and found not taxable; a subsequent decision of the court of appeals in that case, as in this, having thrown a new light on the question passed upon. In the absence of anything to show that there was any opposition or discussion of the application before Judge Herrick, that decision cannot be regarded as a precedent. The Pennsylvania courts have passed upon the principle of the question here involved, although upon different statutory language. In Re Money-penny’s Estate, 181 Pa. St. 312, 37 Atl. 589, the court said:

“The ground of this second appraisement was that the New York land had been converted into personalty by the testator’s direction to sell, and that the first appraiser had omitted it. The fact of such omission was conceded. The auditor found expressly that the omission was not induced by any fraud or concealment, and the undisputed evidence shows that it was not the result of accident or of mistake, in any proper legal sense, but was done intentionally by the appraiser upon his view of the law. The error, if there was one, was due to the appraiser’s erroneous judgment, deliberately reached upon knowledge of all the facts. The commonwealth seeks, and the court has sustained, a second appraisement to revise this judgment of the appraiser. Clearly, this cannot be done. The plain statutory remedy for such a case is not a second appraisement, but an appeal from the first. It does not admit of doubt that, if the commonwealth had appealed, the court would have reviewed the appraiser’s action and corrected any error. This fact alone is conclusive that an appeal was the proper and exclusive remedy.’

The comptroller’s attorney invokes the rule that statutes are to be construed in the light of the evil sought to be remedied, and recites the history of the attempt and failure to tax certain estates, and says that the comptroller, moved by such failure,' went to the legislature and secured the passage of the amendment relied upon in this application. One objection to applying that rule in this case is that the evil referred to was not long continued and open, and one that could be assumed to be in the minds of the legislators when they enacted the law. A right of appeal already existed. If the intent had been, as is contendéd, to extend this right, as to the comptroller, for a period of two years, instead of two months, as it had been previously, the natural course would have been to amend the existing portion of the act allowing an appeal by saying, in direct words, that the comptroller should have such right of appeal for a term of two years. There was added, however, an entirely new provision, framed in entirely different languagé, and language that is apt and suitable to describe grounds upon which judgments or other determinations of courts may so generally be attacked after the time to appeal has expired. It is noteworthy that the period of time fixed upon by this amendment is the same as is allowed by section 1290 of the Code for moving to set aside a final judgment for error in fact not arising upon the trial. My conclusion is that only errors of fact were intended to be embraced by the language relied upon, and that this application, based upon what was emphatically an error of law, must be denied.

Application denied.  