
    The People of the State of New York ex rel. Rudolph H. Lee, as Executor of George C. Lee, Deceased, Respondent, v. John F. Gilchrist et al., Constituting the State Tax Commission, Appellants.
    
      Tax — income tax — partnership — income received by surviving partners and paid to estate of deceased partner pursuant to terms of partnership agreement — improper assessment of income tax thereon.
    
    
      People ex rel. Lee v. Gilchrist, 215 App. Div. 576, affirmed.
    (Argued November 16, 1926;
    decided November 30, 1926.)
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered March 8, 1926, which annulled on certiorari a determination of the State Tax Commission assessing an additional income tax upon the estate of George C. Lee, deceased. The question was whether partnership income received by surviving partners and paid over to the estate of a deceased partner, pursuant to the terms of the partnership agreement, should be taxed as income to the surviving partners or as income to the estate of the deceased partner. The Appellate Division held that the sum in question was received by the estate not as income, but as a payment of principal from the surviving partners for the deceased partner’s interest in good will.
    
      Albert Oitinger, Attorney-General (Henry S. Manley of counsel), for appellants.
    
      Martin Boob and Jacob H. Shaffer, for respondent.
   Order affirmed,- with costs; no opinion.

Concur: His cock, Ch. J., Pound, Crane, Andrews and Lehman, JJ. Dissenting: Cardozo and McLaughlin, JJ.  