
    
      In re Hall’s Estate.
    
      (Supreme Court, General Term, First Department.
    
    November 7, 1889.)
    1. Appeal—Record—Certificate.
    An appeal from a surrogate’s decree will be dismissed on the court’s own motion where there is no certificate with regard to the record from the surrogate’s court.
    2. Collateral Inheritance Tax—Erroneous Decree—Restitution.
    The mode of obtaining restitution of a collateral inheritance tax, which was paid under an erroneous decree of the surrogate, is that pointed out by the inheritance tax act (Laws N. T. 1887, c. 713, § 12,) and not by appeal under Code Civil Proc. g 2587, authorizing the appellate court to enforce the decree appealed from or award restitution, as the case may require, but the decree must be decided erroneous by appeal before restitution can be awarded under the act.
    Appeal from surrogate’s court. New York county.
    David A. Hall, sole legatee and devisee under the last will and testament of David F. Hall, deceased, appeals from an order of the surrogate, directing the ancillary executor to pay a collateral inheritance tax, amounting to the sum of $12,419.94, with interest.
    Argued before Van Brunt, P. J., and Daniels and Barrett, JJ.
    
      E. G. Duvall, Jr., for appellant. Geo. W. Eastman, for respondent.
   Barrett, J.

This is evidently a friendly appeal arranged between the legatee and the ancillary executor for the purpose of obtaining restitution of the sum paid under the surrogate’s decree. This decree was made in October, 1887, upon the authority of a general term decision (second department) handed down in July of that year. In re Enston, 46 Hun, 506. It was there held. that property within this state, which passed by will from a non-resident, decedent to collateral relatives, was taxable under the Act of 1885, c. 483. Mr. Hall, the present legatee, was fully heard before the making of the decree. The ancillary executor, in November, 1887, paid the tax to the comptroller of the city of New York and to the treasurers of Kings and Queens counties. Thus the decree was completely executed. The matter stood in this way until April, 1889, when the court of appeals reversed the Enston Case, (21 N. E. Rep. 87,) and held that, under the circumstances there disclosed, the property within this state was not taxable under the act of 1885. Thereupon Mr. Duvall, as attorney for Hall, admitted service of a copy of the surrogate’s decree as of the date of June 24, 1889, and within 30 days from the latter date (namely, July 10,1889) he took the present appeal. He seems to have served notice of this appeal upon the attorney general and the district attorney of this county, but not upon the comptroller of the state or of the city of New York, nor upon either of the county treasurers above referred to. A case upon appeal seems to have been made up by agreement between Mr. Duvall and Mr. Eastman, for there is no certificate with regard to the record from the surrogate’s court; and the appeal papers contain a stipulation dehors the record to the effect that the ancillary executor duly paid the tax as already stated; and to this stipulation is appended the receipts of the respective officials. It would be sufficient for the due disposition of this matter, as thus irregularly presented,"to say that the record, properly certified, is not. before us, and that therefore the appeal cannot be heard. Such, indeed, must, be the disposition of the case, and such would have been its disposition without investigation but for the fact that it was submitted without argument. As, however, the case had to be examined before the irregularity pointed out. could well be discovered, we may as well suggest to the learned counsel some difficulties which became apparent before this irregularity was realized. The question of restitution, it seems to us, cannot come up as part of the hearing and decision of the appeal. The record, properly certified, will not show the execution of the decree, and the question whether such decree should be affirmed or reversed rñust be independently determined. If it shall be reversed, the mode of obtaining restitution is pointed out by the collateral tax act (Laws 1887, c. 713, § 12) for the ordinary practice under the Code, § 2587 is-inapplicable where the money has actually been paid into the state treasury. Another question which counsel must consider before again asking us, even upon a correct record, to review this decree, is whether the comptrollers of the state and city, and the treasurers of the two counties, must not be made parties to the appeal under section 2573. The state of New York, the city comptroller, and the two county treasurers, seem to have interests which are directly affected by the decree. The tax has doubtless long since been paid into the state treasury, and 5 per cent, for collection retained by the officers under section 22 of the Act of 1885. The question of the proper method of obtaining restitution from the state was considered by this court in the late case of In re Howard, ante, 594, and it was there held that the remedy was under section 12 of the Act of 1887, c. 713. But first there must be a decision on the question of affirmance or reversal, and that decision can only be made upon a duly certified record, and probably upon a compliance with section 2573, as to the proper parties upon the appeal. As the matter now stands the hearing is dismissed, and the appeal stricken from the calendar, without prejudice. All concur.  