225 A.D. 782 | N.Y. App. Div. | 1928
It was not within the jurisdiction of the Surrogate’s Court to order the State Tax Commission to refund any part of the tax paid. (Matter of Bonaparte, 124 Mise. 661; Matter of Tillinghast, 94 id. 76; affd., 184 App. Div. 886; Matter of Endicott, 128 Misc. 159.) Whether or not a refund is due to the executor under the provisions of section 225 of the Tax Law may be determined in a mandamus proceeding. (People ex rel. Metropolitan Trust Co. v. Travis, 191 App. Div. 129.) The question as to whether two years had elapsed since the entry of an order fixing the tax as provided in section 225 of the Tax Law was not before the surrogate in this proceeding. The order in so far as appealed from should be reversed, with ten dollars costs and disbursements, and the motion in so far as it seeks a resettlement of the order by including the provision for a refund denied, with ten dollars costs. All concur. Present — Clark, Sears, Taylor, Sawyer and Edgcomb, JJ. Order so far as appealed from reversed, with ten dollars costs and disbursements, and motion, in so far as it seeks a resettlement of the order by including the provision for a refund, denied, with ten dollars costs.
