
    In the Matter of the Appraisal of the Estate of William Scrimgeour, Deceased, under the Transfer Tax Act. William R. Scrimgeour et al., Respondents; Nathan L. Miller, as State Comptroller, Appellant.
    
      Matter of Scrimgeour, 80 App. Div, 388, affirmed.
    (Argued June 2, 1903;
    decided June 16, 1903.)
    Appeal from a order of the Appellate Division of the • Supreme Court in the second judicial department, entered March 6, 1903, which affirmed an order of the Kings County Surrogate’s Court vacating a former decree assessing a transfer tax on the estate of William Scrimgeour, deceased.
    
      Louis Marshall for appellant.
    
      William Murray for respondents.
   Per Curiam.

Both parties mistakenly supposed that the estate was, under the law, subject to a transfer tax. The proposition was not litigated nor decided, but assumed. We think it was within the power of the surrogate, on an application to his discretion and favor, to open the case, relieve the respondents from the consequence of their mistake and set aside the order which had been erroneously made.

The order appealed from should be affirmed, with costs.

Parker, Ch. J., Gray, O’Brien, Bartlett, Haight, Cullen and Werner, JJ., concur.

Order affirmed.  