98 N.Y.S. 535 | N.Y. App. Div. | 1906
The State Comptroller, appeals from an order of the Special.Term denying an application for a peremptory wri-t_of mandamus requiring the surrogate of Kings county to make an order appointing an appraiser in a transfer tax proceeding attempted to be instituted by-the appellant in said county. The statute pursuant to which the learned surrogate was requested' to act (Laws of 1896, clia-p. 9.08, § 230, as amd. by'Laws of 1904, chap. 75‘8) provides: “The surrogate, either upon his own' motion, or upon the application of any interested party, including the Comptroller of the State of Mew York, shall by order direct the county treasurer in a county in which
Was a proper application, made? The "applicatibn was- made upon a verified petition which set forth facts upon which the jurisdiction of the surrogate to act depended. To be sure the allegations are upon information and belief, but this is good pleading and "is expressly authorized by the Code of Civil Procedure, whether -in an-action or in a,proceeding in Surrogate’s Court, and surely moré cannot be required" respecting the petition- for the institution of this-proceeding than is required to institute proceedings in. the Surrogate’s. Court.. The petition .is -made by the officer charged by law with the duty of collecting this tax; he cannot know of his own
Is mandamus the proper remedy ? No appeal lies from an ex parte order, because no effectual judgment or order could be made on the determination of the appeal, except in the nature of mandamus. (Matter of Johnson, 27 Hun, 538 ; People ex rel. Schlehr v. Common Council, 30 id. 636 ; Matter of Nottingham, 88 id. 443 Hayes v. Consolidated Gas Co., 143 N. Y. 641.) The function of mandamus is to compel action and not to review action taken ; it can control the performance of a ministerial duty; it can require, but cannot control, the exercise of j udguient or discretion. These propositions are elemental. The learned court at Special Term was of the opinion that mandamus would not lie because the surrogate ha'd a judicial discretion in the matter of granting these orders. . This proposition, if I am correct, is untenable., He has no discretion, but of' 'course is required to exercise judgment in determining whether a case is presented requiring him to act. " If his refusal to act upon the erroneous determination, that he had not jurisdiction:* cannot, be corrected by mandamus, then I conceive that there- can be few cases in which a judicial officer can be compelled to act,.' because he can usually say that he had to exercise judgment in determining whether a case was presented requiring, action, and that he had exercised such judgment in determining that no action'’ was required. In this case the refusal of the surrogate to act prer sents nothing for review. The petitioner seeks to compel Mm to act, not to control his action. An officer cannot refuse to discharge his duty and then defeat mandamus by saying that he determined that no case was presented calling upon him for the discharge of such duty. What the petitioner seeks is a determination of this matter upon the merits. Of course if, after the institution .of the proper proceedings, the surrogate in determining the matter upon the merits should conclude that he had not jurisdiction to assess .a tax, that conclusion could be reviewed only in the manner pointed out by- the statute, to wit, by an appeal to the surrogate and from his order on such appeal to the Appellate Division.. Ho case has been called to our attention in which mandamus has .been refused where the officer has refused to act upon the erroneous assertion of
As there are no facts in dispute a peremptory writ should issue. The order appealed from should be reversed, without costs, and the application for a peremptory writ of mandamus granted, without costs.
Hirschberg, P. J., Woodward, Jenks and Hooker, JJ., concurred.
Order reversed, without costs, and application for peremptory writ of mandamus granted, without costs..
Tax Law, art, 10, as amd.— [Rep.