
    (37 Misc. Rep. 542.)
    In re JOHNSON’S ESTATE.
    (Surrogate’s Court, Kings County.
    March, 1902.)
    Transfer Tax—Appraisal—Rehearing.
    A rehearing will not be granted the state comptroller to review an appraisal £or the transfer tax, because the stocks of the estate, having no market value, have been appraised too low, without evidence that on a rehearing an increased valuation will be shown.
    In the matter of the estate of Albert U. Johnson. Appeal by the state comptroller from a decree on appraisal fixing the tax on certain legacies. Appeal dismissed.
    Edward L. Collier, for appellant.
    Samuel B. Clarke, for respondent.
   CHURCH, S.

This is an appeal on. behalf of the comptroller from the decree on appraisal fixing the tax upon certain legacies made by the deceased. It appears that the appraiser had deducted from the various legacies the amount paid under the internal revenue tax. By the recent decision of the court of appeals, it has been held that this is an improper deduction, and to this extent the appeal is sustained; but, of course, it is unnecessary for this purpose to send the matter back to the appraiser for review. The appeal is taken, however, on two other and separate grounds, namely: First, that the appraiser erred in the value which should be placed upon certain shares of stock of the Lehigh Valley Traction Company owned by the deceased ; second, that the appraiser erred in the value placed upon certain shares of stock of the Johnson Company owned by the deceased. The shares of stock of these two companies are not dealt in largely so as to have any quoted or market value, and are held by a few individuals, and simply change hands under private sale between parties having direct knowledge of the value of these corporations. It appears -that before the appraiser the statement under oath of the executor in relation to the value of this stock was accepted as true, and the appraisement made upon that basis. Upon the appeal, however, the attorney for the state comptroller has made affidavit that, from some inquiries which he has made, it appears that this stock was worth more money, and asks, therefore, that the matter be sent back to the appraiser for a full hearing upon the subject. It seems to me that in a matter of this kind there should be submitted to me some definite evidence from which I could see that it was probable that upon a rehearing before the appraiser that evidence would be produced that would produce a contrary result, and that there must be some direct and positive fact showing that such evidence can and will be produced. The papers of the state comptroller fail to show that they can produce any evidence that will produce any contrary result. It consists, at the ut.most, of some conversation with brokers and others in regard to the valuation of these stocks. Some of these values are given as to what the stock may be worth at some future time if certain expectations are realized, and there is nowhere contained in the appellant’s papers a specific fact, or statement of any person competent to judge that this stock is worth one dollar more than the sum for which it has been appraised. I therefore refuse to sustain the appeal upon these latter grounds. Let decree be entered in accordance with these views.

Appeal dismissed.  