
    Matter of the Estate of Charles F. Wright, Deceased.
    (Surrogate’s Court, New York County,
    January, 1915.)
    Costs — of appeal — costs allowed to appellant — when final order assessing transfer tax upon trust fund is reversed.
    Where a final order assessing a transfer tax upon a trust fund which came into the possession of the trustees after decedent’s death is reversed by the Appellate Division, the only costs which can be allowed to appellant are the costs of the appeal, viz.: $20 before argument and $40 for argument, besides disbursements.
    Application for a taxation of costs.
    Lyon & Smith, for appellants.
    Edward F. Boyle, for state comptroller, respondent.
   Fowler, S.

This is an application for taxation of costs upon an order of the Appellate Division reversing the order of this court, with costs, and dismissing the proceeding, with costs. An order was entered in this court upon the report of the transfer tax appraisers assessing a tax upon a trust fund which came into the possession of the trustees after decedent’s death. An appeal was taken to the surrogate from the pro forma order entered upon the appraiser’s report, and a decision was rendered which directed that the appraiser’s report be remitted to him for correction. The order entered upon his supplemental report was affirmed by this court and an appeal was then taken by the trustees to the Appellate Division, where, the order of the surrogate was reversed and the proceeding dismissed. The appellants submit a bill of costs containing the following items: “ Trial fee, contest, $70; trial fee, issue of law, $20; proceedings after granting and before new trial, $25; costs in the Appellate Division before argument, $20; for argument, $40.” The state comptroller contends that the only costs to which the appellants are entitled are twenty dollars before argument and forty dollars for argument in the Appellate Division. Section 232 of the Tax Law provides that the surrogate cannot allow costs upon an appeal to him from his pro forma order entered upon the appraiser’s report; therefore the only proceeding to which the direction of the Appellate Division could apply would be the proceeding before the appraiser which terminated in the filing of his report and the entry of the pro forma order thereon. Costs have never been awarded by this court in proceedings before the transfer tax appraiser, and I doubt whether this court has jurisdiction to grant such costs. The proceeding before the appraiser is not a proceeding before this court, as the appraiser is an employee of an independent branch of the state government, and the entry of the pro forma order upon his report is a ministerial act upon the part of the surrogate and not an act requiring the exercise of judicial authority. In any event, costs in the Surrogate’s Court are in the discretion of the surrogate (Code Civ. Pro. §§ 2745, 2746, 2747), and no costs were allowed to the respondent by this court in the proceeding to assess a tax upon the estate of the decedent. Section 2751 of the Code of Civil Procedure provides that “ the appellate court may award to a successful party the'costs of the appeal,” but nothing is said about the authority of the appellate court to award costs in the proceeding before this court. I am, therefore, inclined to think that the Appellate Division did not intend to award to the appellants any costs in the proceeding instituted in this court to assess a tax upon the transfer of property of decedent and that the costs allowed by that court are the costs on the appeal taken •to the Appellate Division from the final order of this court. I will fix the costs at sixty dollars, with disbursements. Costs taxed and order on remittitur signed.

Decreed accordingly.  