94 N.Y.S. 144 | N.Y. App. Div. | 1905
The appellant contends no longer that the transfer was not subject tó any tax, and so we need consider the specific objections only. First, the temporary payment on account to the Comptroller is not the concern of appraiser or the surrogate. It is deductible from the amount finally found due. If nothing be due', then it must be refunded. Second, the claim against the estate of Francis C. Fleming may be excluded, because it is in genuine litigation. Although the appellant has been successful, there remains the accounting under the interlocutory judgment and the right .of the unsuccessful party to appeal from .the final judgment to the Court of Appeals. Under such circumstances^ we think that the procedure indicated iMatter of Westurn (152 N. Y. 93, 102) should obtain, to wit: the amount of the claim should be excluded for the present, and reserved for future appraisement in case the appellant finally succeeds in collecting it. Third, there should be a deduction of $1,000 from the appraised valuation of the Koch street property, perforce of the stipulation before the surrogate that at the time of the’ transfer “ there was a mortgage of $1,000 upon the Kocli street property, which sum should be deducted .from the appraisal valuation of the property so transferred.” (See Matter of Thompson, 57 App. Div. 317.) Fowrth, the court did not err “in imposing a penalty of 10 per cent interest.” The court did not impose any interest by the Order. When interest is charged there is opportunity for application to the surrogate for remission. (Carter’s Transf. Tax Law of New York, 205.) In the cases cited by the appellant (Matter of Davis, 149 N. Y. 539, and Matter of Moore, 90 Hun. 162) the decree and order respectively appealed from fixed the rates of interest, and for this reason they may be discriminated. Fifth, the sum of $15,435.70, the amount of the judgment rendered against the appellant, as administrator cum testamento annewo of the estate of Frances A. Skinner, deceased, should not be deducted. The appellant insists that such deduction should be made because the grantee and legatee is compelled to satisfy such-judgment out-of the personal estate. It appeared - that there is a; bond and mortgage for $175,000 given to the said Skinner, con- ■ ditioned that Sutherland, the mortgagor, would pay to Skinner or her executors, etc., any sums of money with which she ■ would be
The order must be modified in accordance with this opinion, and as modified affirmed, without costs of this appeal to either party.
Hirsohberg, P. J., Bartlett and Rich, JJ., concurred.
Order of the Surrogate’s Court of Westchester county modified in accordance with the opinion of Jenks, J., and as so modified affirmed, without costs of this appeal to either party. Order to be settled before Jenks, J.