
    In the Matter of the Transfer Tax upon the Estate of George Frederick Vietor, Deceased.
    First Department,
    December 26, 1913.
    Tax — transfer tax — appeal from order of surrogate as taxing officer.
    Where, after an appeal from a surrogate’s decree in a transfer tax proceeding, the matter is remitted to the appraiser and the surrogate makes the usual order fixing the cash value of the property transferred and the amount of the taxes, no appeal lies from his order as a taxing officer.
    Motion to dismiss appeal.
    
      David Leventritt, for the motion.
    
      George Thomas, opposed.
   Per Curiam:

It appears that on December 2,1912, the report of the appraiser fixing the amount upon which the tax was to be imposed was filed, and the usual order confirming the report was filed on January 6,1913. Both the Comptroller and the executors appealed to the surrogate, both appeals were heard, and by an order entered May 1Y, 1913, the appeal of the Comptroller was overruled, and the appeal of the executors sustained in part, and the matter was remitted to the appraiser for correction and further action. The appraiser made a supplemental amended report, and the surrogate made the usual order of course fixing the cash value of the property transferred and the amount of the tax. No appeal was taken from this order to the surrogate, and apparently the time in which to appeal was allowed to expire; whereupon the Comptroller appeals from this last order entered on July 11, 1913, and the respondents move to dismiss the appeal.

Section 231 of the Tax Law (Consol. Laws, chap. 60; Laws of 1909, chap. 62) provides that upon the report of the appraiser and other proof the surrogate shall determine the cash value of the property and the amount of tax and give notice to the executors and persons interested. Section 232 of the Tax Law provides that any person dissatisfied with the appraisal or assessment and determination of tax may appeal therefrom to the surrogate within sixty days, upon filing in the office of the surrogate a written notice of appeal. This seems to be the only provision in the Tax Law which allows an appeal. The order was entered, of course, without notice. It was held in Matter of Wolfe (137 N. Y. 205) that the surrogate was simply a taxing officer; and in Matter of Costello (189 id. 288) that the proper proceeding to review the surrogate’s decision as taxing officer was to appeal to the surrogate, and no appeal from the order of the surrogate as a taxing officer was allowable except as provided for by the Tax Law. And in that case an order of the Appellate Division dismissing the Comptroller’s appeal from the decision of the surrogate acting as a taxing officer was affirmed. No appeal, therefore, lies from the surrogate’s order as a taxing officer, and this appeal must he dismissed.

The motion should be granted, with ten dollars costs.

Present — Ingraham, P. J., Clarke, Scott, Dowling and Hotchkiss, JJ.

Motion granted, with ten dollars costs.  