176 A.D. 850 | N.Y. App. Div. | 1917
The appeal taken by the Comptroller is on the ground that by an erroneous method adopted by the appraiser in fixing the values of a certain fractional interest in real property the interest of the decedent therein had been undervalued.
There are several parcels of real estate to which the Comptroller’s appeal relates. As to each one the decedent was the owner of an undivided one-third interest. Certain of the parcels were covered by a general mortgage and in addition there was a mortgage upon the one-third interest of the decedent in the property. It is conceded that it is proper to make a deduc
The cases cited in support of the Comptroller’s contention {Matter of Sutton, 3 App. Div. 208; Matter of Offerman, 25 id. 94; Matter of Berry, 23 Mise. Rep. 230, and Kitching v. Shear, 26 id. 436) have no bearing upon the case.
The appeal taken by the estate has to do with the fifteen per cent deduction, the claim of the estate being that the only evidence before the appraiser was that the proper rate of diminution was twenty-five per cent and that the appraiser disregarded this evidence and adopted the fifteen per cent rate arbitrarily. This appeal, therefore, presents the question whether the appraiser in such a proceeding is bound to report according to the evidence produced before him. This appraisal was pursuant to section 230 of the Tax Law (Consol. Laws, chap. 60; Laws of 1909, chap. 62), as amended by chapter 800 of theLawsof 1911, which, prescribing the duties of the appraiser in appraising property, provides: “ He shall at such time and place appraise the same at its fair market value as herein prescribed; and for that purpose the said appraiser is authorized to issue subpoenas and to compel the attendance of witnesses before him and to take the evidence of such witnesses under oath concerning such property and the value thereof; and he shall make report thereof and of such value in writing, to the said surrogate, together with the depositions of the witnesses examined, and such other facts in relation thereto and to said matter as the surrogate may order or require.”
It has been for many years the rule where questions are presented to the surrogate on appeals taken from determinations made by appraisers, to determine them upon the evidence before the court. {Matter ofHeenan, N. Y. L. J., March 5,1908, per Beckett, S.; Matter of Loeb, Id., Jan. 13,1914, per Cohalan, S., and Matter of Clark, Id., Feb. 4, 1914, per Fowler, S., the learned surrogate in the case at bar.) As the statute invests the appraiser with the power to take testimony, and compel
Clarke, P. J., Laughlin, Dowling and Smith, JJ., concurred.
Order, so far as appealed from by the Comptroller, affirmed, and, so far as appealed from by the estate, reversed and proceeding remitted to the appraiser, as stated in opinion, without costs. Order to be settled on notice.