2 Mills Surr. 440 | N.Y. Sur. Ct. | 1902
— The order fixing the tax was an adjudication, binding on the parties and on the State as to all matters litigated before the appraiser and passed upon by him. The appraiser had the claim of Alexander C. Morgan against the decedent’s estate brought to his attention, but he did not pass upon it for the reason that it was then in litigation, and this fact appears upon the face of his report. The question as to the propriety of a deduction for this claim has, therefore, not yet been determined. The matter will be sent back to the appraiser to take evidence and report what, if any, rebate or deduction from the tax imposed should be made because of this claim. The other claims for which deductions are asked do not appear to have been urged before the appraiser, and no general reservation on the subject of claims was made by him. Such reservation would have been proper under Matter of Westurn, 152 N. Y. 93, 100, and in the absence of it the only remedy under the statute for an omission to give proper credit for debts is by appeal. The time to appeal from the order has long since expired, and I am without jurisdiction to grant the relief asked for as to those claims. Matter of Crerar, 56 App. Div. 481. The order denying this part of the application will state that such denial is upon the ground of want of jurisdiction.
Decreed accordingly.
