
    Matter of the Appraisal under the Transfer Tax Acts of the Property of James Boyle, Deceased.
    
      (Surrogate’s Court, Kings County,
    
    
      October, 1915.)
    Taxes—Transfer tax—When affidavit of administrator misstated MARKET VALUE OF CERTAIN STOCK-ASSESSMENT OF TAX-WHEN ERROR MAT BE CORRECTED.
    Where it is conceded, that the affidavit of the administrator in a transfer tax proceeding inadvertently misstated the market value of certain stock belonging to the estate, and that following the report of the appraiser based on such statement the tax was assessed as if the stock was of its fair market value instead of its true value, the error may be corrected even after the lapse of two years from the making of the order assessing the tax.
    Appeal from an order assessing and fixing the transfer tax.
    S. M. & D. E. Meeker, for motion.
    Marcus B. Campbell, for state comptroller.
   Ketciiam, S.

Relief is asked in behalf of the administrator against an order made in 1910 fixing the tax upon the transfer of the property of the decedent. Objection is made by the comptroller that the motion cannot be entertained after the lapse of two years from the making" of the order.

The affidavit of the administrator in the transfer tax proceeding inadvertently stated that the market value of 114 shares of Manufacturerers’ Rational Bank stock, found in the estate, par value 30 at $412, was $47,310, and the report of the appraiser was based on this statement, while in fact the market value of this stock was $30 at 415 per cent. Upon this statement the tax was assessed as if the stock described was of the value of $47,310, instead of the true value of $14,193.

The result was wrong and the impulse of the law should be to correct it, if possible. To leave the record as it is would leave the parties subject to a tax originally unlawful and would leave the state in the oppressive attitude towards the citizen.

Adjudications are not to be altered lightly, but while a judgment is a solemn thing an injustice is more solemn.

This motion must prevail if the confessed infirmity in the .record was the result of a clerical error. (Code Civ. Pro., § 2490, subd. 6.)

The statement upon which the appraiser’s report and the surrogate’s order were based is conceded to have been a mistake, and, of course, it was a clerical mistake, at least on the part of the affiant. Contrary to the fact there were introduced into the affidavit of value the figures “ 412 ” instead of the figures “ 415 per cent.”

This case falls within Matter of O’Reilly, decided in this court (Suit. Dec. Mar. 26, 1909). • There a decree entered upon the settlement of accounts was opened, vacated and set aside and the executor allowed to file a new account upon motion made four years after the making of the decree in the accounting. This decision was affirmed by the Appellate Division (136 App. Div. 891), and by the Court of Appeals (197 U. T. 551).

The only grounds upon which relief was granted were that the accountant had in reliance upon information received by him from his own agents declared in his former account that he was chargeable with certain large sums specified, while in truth the sums so specified greatly exceeded the actual amounts with which he was properly chargeable.

The only meaning of the case is that a clerical error by a party in his representation to a court upon the adoption of which an inaccurate judgment has been made is among the errors which the statute recognizes as the basis for relief even after the expiration of two years.

The order, so far as it depends upon a misstatement of the value of the stock in question, should be modified either by a direct resettlement or upon a reference to the appraiser, as the comptroller may elect.

Order modified.  