
    In the Matter of the Transfer Tax upon the Estate of Edward A. Collins, Deceased. The Comptroller of the State of New York, Appellant.
    
      Order of' a surrogate clecla/ring an estate exempt from the transfer tax — it can be made only on notice to the State Comptroller-^ it is not the subject of attack collaterally— costs on the reversal of an order, not granted against a party who did, not advocate the granting-of " the order.
    
    | While the Surrogate’s Court has power to make an order declaring the estate of. a decedent to he exempt from the payment of a transfer tax, although there, is no express provision in the Tax - Law authorizing it to dó so, such an. order cannot in those counties where the State Comptroller acts in place of the county treasurer be granted without notice to him.
    Even though a lack of notice to the State Comptroller be not deemed a jurisdictional defect available in a collateral attack upon the order, such lack of notice is fatal to the order upon a direct review thereof by appeal.
    The Appellate Division, when reversing an order denying an application, -the ■ granting of which was not opposed by the party against whom it was made, will not. award costs of the appeal against such party.
    Appeal by the Comptroller of the State of New York from an order of the Surrogate’s Court of Kings county, entered in said Surrogate’s Court on the 3d day of January, 1905, as resettled, denying an unopposed motion made by the appellant to vacate an ex parte order declaring the estate of Edward A. Collins, deceased, to be exempt from the transfer tax.
    
      Frank Julian Price [Leonard B. Smith with him on the brief], for the appellant.
   Willard Bartlett, J.:

Edward A. Collins, the testator in this proceeding, who was a resident of Kings county, died on the 3d day of August, 1903, at which time the amendment to the Tax Law had taken effect making the transfer by will of real property of the value of $10,000 or more to lineal descendants taxable at the rate of one per centum upon the clear market value of such property. (Laws of 1896, chap. 908, • § 221, as amd. by Laws of 1903, chap. 41, in effect March 16, 1903.) In November, 1904, the administrator with the will annexed petitioned the Surrogate’s Court of Kings county for an order declaring ■ the estate to be exempt from the transfer tax. His petition showed that the property to be administered ” or property subject to administration” did not exceed $10,000 in value; but it contained no statement as to whether the decedent left any real property or not. Upon this petition, without notice to the State Comptroller, the Surrogate’s Court granted the order appealed from, .declaring the estate to be exempt from any transfer tax. The first, and perhaps the most important, question presented by this appeal is whether such an order ought to have been made in the absence of notice to the Comptroller of the State.

I have not .been able to find any provision in the Tax Law which expressly empowers the Surrogate's Court to grant an order of exemption. That such an order may properly be,made, however, in a. proceeding to appraise the estate of a-decedent for the purposes of. the' transfer tax can hardly be doubted in view of the.language of section 229 of said Tax Law (as amd. by Laws of 1901, chap. 173), .which declares that the Surrogate’s Court shall have jurisdiction to hear and determine all questions arising under -the provisions of article 10 of said statute, relating to taxable transfers, and to do any act in relation thereto authorized to be done by a ¡surrogate in other matters or proceedings coming within his jurisdiption. The question here is, however, whether in an independent proceeding, not having for its -purpose an appraisal of the estate, and not contemplating any action af all by -way of appraisement, the surrogate can grant an order of exemption ujpon proof by thé representative of the estate tending to show that it is not subject to any transfer tax, and without -any notice to the State Comptroller or any opportunity -on his part to be heard in reference to the issue of taxability. The learned counsel who appears for the State' Comptroller bn this appeal insists that even if there be an implied power in the surrogate. to make such an order under- the provisions, of section 229 of the Tax Law (as amd. supra), there is an equally clear implication in other provisions of that statute which forbids him from taking any such action until the Comptroller has .been notified of the application. I think that this view 'is correct. The provisions in regard to the functions and duties of the State Comptroller contained in sections 225, 229,; 230, 230á, 231, 232 -and 235 io.f the Tax Lawfas amd, by Laws of 1901, cliap. 173 ; Laws of 1902, chap. .496, and Laws of 1904, chap. 758), indicate a clear intent oh the part of/ the Legislature to make the State Comptroller (in those counties where he acts in place of the county treasurer) an interested party in all proceedings under that statute having for their purpose the determination-of the question whether the estate- of a decedent is or is not subject to a tranfer tax. Section 231 of the statute (as-amd. by Laws of 1901, chap. 173) expressly requires that, where there is an appraisal, notice of the time and place thereof must be given, to the State Comptroller. If an effective order of exemption can be made without .notice to the State Comptroller,, it - would seem that the State might thus be barred of all right tó enforce Or recover -any transfer tax by the ex parte action of the surrogate. 1 do not think that the procedure established by the Tax Law was designed to permit any such result; but even though the lack of notice be not deemed a'jurisdictional defect, it seems to me that it should be regarded as an objection which is fatal to the order upon a direct review thereof by appeal.

In any event, it is plain that the Comptroller’s motion to vacate this order of exemption should have been granted on the merits. The administrator’s petition, which constituted the only evidence upon which the order of exemption was made, is insufficient to support that order, for it related only to the personal property of the decedent, and contained no proof that he did not die seized of real estate liable to taxation under the amendment of 1903, to which reference has already been made. (Laws of 1903, chap. 11.) In the papers upon which the State Comptroller moved to vacate the order of exemption was an affidavit of the attorney representing him in Kings county, to the effect that, as he was informed and believed, the decedent died seized of real estate, and that the sources of the affiant’s information and the grounds of his belief were the records of the Surrogate’s Court. The statements in this affidavit were not ■ controverted; indeed, the counsel for the administrator with the will annexed made no opposition to the Comptroller’s application to vacate the order of exemption, as expressly appears in the order under review, and yet the learned surrogate denied the motion, with ten dollars costs.

It seems to me that costs should not be imposed upon a moving party by an order denying a motion that is not opposed by counsel who appear in behalf of the party against whom the application is made. The order appealed from should be reversed and the motion to vacate the order of exemption granted. This, however, must be without costs in this court, as we cannot mulct the administrator with the expenses of an appeal in reviewing the action of the surrogate, in refusing to grant the motion to which that administrator made no opposition.

Hirsohbbeg, P. J., Jenks, Rich and Miller, JJ., concurred.

Order of the Surrogate’s Court of Kings county reversed, without costs, and motion to vacate order of exemption granted, without costs.  