
    In the Matter of the Transfer Tax upon the Estate of Edward M. Cameron, Deceased. Otto Kelsey, as Comptroller of the State of New York, Appellant, Respondent; Harris D. Colt, as Executor, etc., of Edward M. Cameron, Deceased, Respondent, Appellant.
    
      Worm of an order vacating a decision on the ground, of newly-discoves'ed evidence — when a surrogate on vacating an oi'der imposing a transfer tax need not remit the matter to an appraiser — a direction to the Comptroller to refund the amount of the tax is unnecessary.
    
    Ordinarily, where a determination is set aside on the ground of newly-discovered evidence, the order setting it aside should not contain an adjudication contrary to the former determination, but should provide for a new hearing upon which both parties may be heard.
    This rule, however, does not make it improper for a surrogate, when uncontrovertible evidence, discovered since the entry of an order imposing a transfer tax upon an estate, is presented to him, establishing that the' estate is not subject to a transfer tax, to vacate the order imposing the transfer tax, and make it necessary for him to remit the matter to the official- appraiser to make the computation upon which the taxability or non-taxability of the property depends, particularly, as, under section 232 of the Tax Law, he is expressly' empowered to determine the amount of the transfer tax to which the estate is liable without appointing an appraiser.
    The surrogate may properly refuse to insert in the order vacating the transfer tax imposed upon the estate a direction to the State Comptroller to refund the . amount of the tax, as the statute itself directs the refunding of the tax in such a case (Laws of 1896, chap. 908, § 225, as amd. by Laws of 1897, chap. 284)!
    Cross-appeals by Otto Kelsey, as Comptroller of the State of New York, and by Harris D, Colt, as executor, etc., of Edward M. Cameron, deceased, from portions of a decree of the Surrogate’s Court of the county of Suffolk, entered in said Surrogate’s Court on the 7th day of March, 1904, vacating a prior order of said Surrogate’s Court fixing a transfer tax upon certain property received by the said executor.
    
      Robert C. Gumrwmg [Charles R. Weeks with- him on the brief], for the State Comptroller.
    
      Hugo Kohlmamm [A. Henry Mosle and William H Thitohener with him on the brief], for Harris D. Colt, as executor.
   Willard Bartlett, J.:

We think that the surrogate of Suffolk county, upon the petition and proofs presented to him in this proceeding, was justified in setting aside the original order imposing a transfer tax upon the moneys which the executor had received from the estate of Richard Arnold, inasmuch as it appeared without contradiction that such moneys were the proceeds of an interest of the decedent in real estate, and were, therefore, not subject to any tax under the laws of this State in relation to taxable transfers of property.

It is contended in behalf of the Comptroller that the surrogate, instead of vacating the prior order, should have remitted the whole matter to the official appraiser to make the computation upon which the taxability or non-taxability of the property depends. His position in this respect might be correct if there was any proof whatever in opposition to that presented by the executor in his moving papers. No evidence was offered before the surrogate, however, to controvert any of the facts upon which the executor based the present application. It is true that the order now under review is expressly based upon evidence stated to have been discovered since the entry of the original order, and ordinarily where a determination is set aside on the ground of newly-discovered evidence the order setting it aside should not contain an adjudication the other way, but should provide for a new hearing upon which both parties may be heard. Here, however, it is plain enough that the State Comptroller has no means of controverting the facts relied upon by the executor to establish the exemption of the property in question, and under these circumstances we think it would have been an idle ceremony for the surrogate to send the matter back to the official appraiser, particularly as under section 232 of the Tax Law he is expressly empowered to determine the* cash value of an estate and the amount of tax to which the same is liable, without appointing an appraiser. If he could have done it before the original order there is no reason why he cannot do it now.

On the other hand, 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 the tax. Such provisions are common in orders of this kind, and orders containing them frequently have been affirmed in 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.) A direction to the State Comptroller to refund seems proper enough. It affords no real ground of objection on the part of that officer, inasmuch as it gives express judicial sanction to his repayment of the tax. It is not at all essential, however, to the preservation or enforcement of the rights of the party entitled to such repayment, because the statute itself commands the State Comptroller in cases of this kind to direct and allow the treasurer of the county or the comptroller of the city of New York to refund to the persons by whom the tax has been paid the amount of any moneys paid or deposited on account of such tax in excess of the amount of tax Which ought to have been exacted. (Laws of 1896, chap. 908, § 225, as amd. by Laws of 1897, chap. 284.)

These views require an affirmance of the decree in all respects.

All concurred.

Decree of the Surrogate’s Court of Suffolk county affirmed* without costs of this appeal.  