
    In the Matter of the Appraisal of the Estate of William H. Hoople, Deceased, under the Transfer Tax Act. Comptroller of the State of New York, Appellant; William G. Hoople, as Executor, etc., of William H. Hoople, Deceased, Respondent.
    
      Transfer taco —refunding of money by the State Comptroller when an application therefor is not ba/rred by the Statute of Limitations—the Code provisions are not applicable — the reversal of the tax may be by the surrogate.
    
    November 29, 1895, when the Transfer Tax Law (Laws of 1892, chap. 399) was in force, an executor paid, under the compulsion of an order of the Surrogate’s Court, a transfer tax amounting to §660 upon property which was exempt from taxation.
    Section 6 of the Transfer' Tax Law provided that it should be lawful for the State Comptroller, upon proof that any portion of a tax had been paid erroneously, to require it to be' refunded, providing, however, that all applications for such refunding should be made within five years from the payment of the tax. This provision was incorporated, without change, in section 225 of the Tax Law (Laws of 1896, chap. 908)' which revised the Transfer Tax Law.
    In 1897, by chapter 284 of that year, section 225 of the Tax Law was amended so as to read as follows: “If after the payment of any tax in pursuance of an order fixing such tax, made by the surrogate having jurisdiction, such order be modified or reversed, on due notice to the Comptroller of the State, the State Comptroller shall, by order, direct and allow the treasurer of the county, or the comptroller of the city of New York, to refund to the executor, administrator, trustee, person or persons, by whom such tax had been paid, fhe amount of any moneys paid or deposited on account of such tax in excess of the amount of the tax fixed by the order modified or reversed, • * * *; ■ but no application for such refund shall be made after one year from such reversal or modification.”
    By chapter 882 of the Laws of 1900, section 225 of the Tax Law was further amended so as to provide for the refunding by an order of the State Comptroller of transfer taxes erroneously paid, if the order was modified or reversed Within two years from and after the date of the entry of the order fixing the tax.
    
      Held, that an application by the executors, in October, 1903, for an order vacating the order fixing the transfer tax and directing the State Comptroller to refund the tax erroneously paid, was not barred by the Statute of Limitations; That the only limitation contained in section 225 of the Tax Law, as amended in 1897, related to the application to the -Comptroller for the refunding of the tax after the order fixing the tax had been reversed or modified, and that it did not limit the time when the modification or reversal of the surrogate’s order must be procured;
    That the reversal or modification contemplated by the section, as amended in 1897, need not be by the action of an appellate tribunal, but might be made by the surrogate himself;
    That section 225, as amended by the act of 1900 could not be given a retroactive effect, as, if the amendment should be deemed to create a Statute of Limitations,
    ' such construction would deprive of all redress those persons from whom payment of an illegal transfer tax had been forcibly exacted, who had delayed proceedings to procure the repayment of the same in reliance upon pre-existing legislation;
    That the statutes of limitations prescribed by sections 380, 382 and 414 of the Code of Civil Procedure were not applicable to the remedies provided by section 225 of the Tax Law for procuring the repayment of a void tax;
    That the Tax Law contains within itself all the limitations affecting the duty and liability of the State Comptroller to make restitution of transfer taxes illegally imposed.
    Appeal by the Comptroller of the State of New York from an order of the Surrogate’s Court of the county of Queens, entered in said Surrogate’s Court on the 29th day of October, 1903, which order vacated a previous order entered in said court on the 9th day of August, 1895, fixing a transfer tax upon United States government bonds under the Transfer Tax Law, and which further directed the State Comptroller tó refund to the executor of the estate of William H. Hoople, deceased, the sum of $660, being the amount paid by such executor in excess of the amount actually due as a transfer tax upon the estate of the said decedent.
    
      Leonard B. Smith, for the appellant.
    
      Joseph Rowan, for the respondent.
   Willard Bartlett, J. :

The tax of $660 which the executor paid to the county treasurer of Queens county on November 29, 1895, under the compulsion of an order of the Surrogate’s Court made on the ninth day of August in the same year, was assessed upon bonds of the United States government which were exempt from taxation under the Transfer Tax Law of 1892 (Chap. 399), and the assessment was, therefore, illegal and void. (Matter of Whiting, 150 N. Y. 27; Matter of Sherman, 153 id. 1.) ■ This is conceded by the respondent. The order under review, however, vacating the order taxing the United States bonds of the decedent was not applied for or made until October, 1903, nearly eight years after the tax had been paid, and the principal contention upon this appeal is that the executor’s right to enforce a repayment as against the State Comptroller is barred by the lapse óf time and the Statute of Limitations.

At the time when the tax in question was assessed and paid, the. Transfer Tax Law then in force provided that it should be lawful for the State Comptroller, upon proof that any amount of said tax had been paid erroneously into the State treasury, to require the amount of the erroneous or illegal payment to be refunded to the person or persons who had paid such tax in error, provided that all applications for such refunding of erroneous taxés should be made within five years from the payment thereof. (Laws of 1892, chap. 399, § 6.) This provision was retained without chaüge as a part of section 225 of the Tax Law when the Transfer Tax Law was revised and incorporated in the Tax Law in 1896. (Laws of 1896, chap. 908, § 225.) In 1897 section 225 of the Tax Law was amended so as to read as follows: “If after the payment of any tax in pursuance of an order fixing such tax, made by the surrogate having jurisdiction, such order be modified or reversed, on due notice to the Comptroller of the State, the State Comptroller shall, by order, direct and allow the treasurer of the county, or the comptroller of the city of Hew York, to refund to the executor, administrator, trustee, person or persons, by whom such tax had been paid, the amount of any moneys paid or deposited on account of such tax in excess of the amount of the tax fixed by the order modified or-reversed, * * * ; but no application for such refund shall be made after one year from such reversal or modification.” It will be observed that the provision quoted contains no limitation as to the time when the modification or reversal- of the surrogate’s order fixing the tax must be procured. The only limitation relates to the application to the Comptroller for a refund of the tax after the order of the surrogate shall have been reversed' or modified. The reversal or modification contemplated by this statute need not be the action of an appellate tribunal. The modification may be made by the surrogate himself. (Matter of Coogan, 27 Misc. Rep. 563 ; affd. as People ex rel. Coogan v. Morgan, 45 App. Div. 628; affd., 162 N. Y. 613.)

In 1900 section 225 of the Tax Law was further amended so as to provide for the refunding by an order of the State Comptroller of taxes erroneously paid, if the order -was modified or reversed within two years from and after the date of the.entry of the order fixing the tax. (Laws of 1900, chap. 382.) The order fixing the tax in the case at bar was not modified within two years after, its entry, and as I understand the argument in behalf of the State Comptroller on this appeal the contention is that the act of 1900 had the effect of absolutely denying any right to enforce the repayment of a void tax where the order assessing the same had been made more than two years before the passage of the act, and remained unreversed and unmodified. This it seems to me would be giving to the act of 1900 a retroactive effect, although the language of the statute does not indicate any intention on the part of the Legislature to do so. The five-year limitation prescribed by the Transfer Tax Law of 1892 had not run when the act of 1897 took effect. The only limitation contained in the act of 1897, as has already been pointed out, related to the lapse of time after the order fixing the tax had been reversed or modified." It did not undertake to. limit the time within which a party who had paid a void tax might apply to the Surrogate’s Court for a modification of the order assessing it. bio thing had occurred, therefore, to bar the right of the executor in this case to apply to the surrogate for a modification of such original order at the .time of the passage of the act of 1900. I do not think that the latter statute was intended to be retroactive, or to have the effect as it would have if so construed, to cut off all rights of the executor in this case immediately upon its enactment. The rule maybe considered settled in this State that neither original statutes nor amendments have any retroactive force unless the Legislature so declares, either in express words or by unmistakable implication.' “ Where it is claimed that a law is to have a retrospective operation, , such must be clearly the intention, evidenced in the law and its purposes, or the court will, presume that the lawmaking power is acting for the future only and not for the past.” (White v. United States, 191 U. S. 545, 552; Matter of Miller, 110 N. Y. 216 ; People ex rel. Collins v. Spicer, 99 id. 225.) The doctrine which has sometimes been laid down that express words are necessary to give a statute a . retroactive effect has been declared not to apply to remedial statutes, provided they do not impair contracts or disturb absolute vested rights (People ex rel. Collins v. Spicer, supra, 233); and it has been held that Statutes of Limitation may act retrospectively unless they absolutely destroy lights of action or impair them to an unreasonable extent. (Fiske v. Briggs, 6 R. I. 557; Burwell v. Tullis, 12 Minn. 572.) But even under this liberal rule no retrospective effect can be given to chapter 382 of the Laws of 1900, amending section 225 of the Tax Law, for if the amendment be deemed a Statute of Limitation, such a construction would absolutely and most unreasonably deprive of all redress those persons from whom payment of an illegal transfer tax had been forcibly exacted but who had delayed proceedings to procure the repayment of'the same in reliance Upon pre-existing legislation.

Assuming that prior to November 29, 1901 (six years after the payment of the tax), the respondent was entitled to enforce a demand for repayment against the State Comptroller, the appellant argues that upon the expiration of thé six years the limitations prescribed by sections 380, 382 and 414 of the Code of Civil Procddure became applicable, and constituted a bar to the enforcement of the executor’s claim. It does not seem to me, however, that the Code provisions cited have any bearing upon such' an order as that here Under review. In terms they could be available to the State Comptroller only in an action or speciál proceeding directly against him; but in my opinion they have no application to the remedies provided by the Tax Law for procuring the repayment of a void tax. It seems to me that the intention of the Legislature has been distinctly manifested in the various enactments oh the subject to put into the tax laws themselves all the limitations affecting the duty and liability of the State Comptroller to make restitution of moneys which the representatives of estates of decedents have been compelled to pay into the State treasury without authority of law.

For these reasons I think that the order of the Surrogate’s Court was right and should be affirmed.

All concurred.

Order of the Surrogate’s Court of Queens county affirmed, with ten dollars costs and disbursements. 
      
       See Laws of 1897, chap. 284.— [Rep.
     