251 A.D. 740 | N.Y. App. Div. | 1937
Order of the Surrogate’s Court of Richmond county, denying the motion of the ancillary executor to dismiss the appeal to the surrogate taken by the State Tax Commission from a pro forma order fixing the transfer tax, affirmed, without costs. We agree with the surrogate that the compromise order is made in an independent judicial proceeding which has for its primary purpose the compromise of the tax originally fixed in the pro forma order. The compromise order, despite its form, does not have the effect of superseding or displacing any order made by the surrogate in his judicial capacity. The pro forma order is one made by the surrogate in his administrative capacity as an assessor. (Matter of Costello, 189 N. Y. 288; Matter of Steinwender, 172 App. Div. 871; Matter of Jones, 151 Misc. 859.) Respondent, by appealing to the surrogate from such pro forma order within the time prescribed, is endeavoring to obtain a judicial review in the only manner available to it. (Tax Law, § 232; Matter of Siegel, 160 Misc. 144; Matter of Moore, Id. 265, and cases there cited.) Lazansky, P. J., Hagarty, Davis, Johnston and Taylor, JJ., concur.