60 N.Y.S. 963 | N.Y. App. Div. | 1899
The appellant is ..met at the threshold of his argument with the objection that this appeal is unauthorized. By section 232 of chapter 908 of the Laws of 1896 (The Tax Law) the procedure under such assessment is prescribed. Pursuant to that section the determination was first made upon the report of the appraiser, and, upon an
The claim of the respondents is that the Legislature has prescribed a specific mode of review of the determination of the surrogate upon the appeal; that that provision Was intended to be exclusive, and that no right of appeal-from that determination is given by the statute. To sustain this claim he cites a case decided in the, first department (Matter of Smith, 40 App. Div. 480). It was there held that the Supreme Court had no power to vacate an order made by a justice of that court under the foregoing section, directing a reappraisal of the estate of a decedent for the purpose of assessing a transfer tax thereon. ’ In the opinion in that case Justice Rhmsey says: “ What is to be done under that statute is prescribed by the statute, and. must be done as prescribed and by the magistrate who is directed to do it, and the courts generally have no jurisdiction in the matter. In these proceedings they can ,act only as they are authorized to act by the statute.” All that is there held is that no statute authorized the motion that was then, under consideration.
But this appeal need' not necessarily rest upon that single statute. If other statutes exist which are applicable thereto they must be read in connection with the statutes, they together prescribing the mode of determination of this tax and also the mode of review. By section 2570 of the Code- of Civil Procedure it is provided: “An appeal to the Appellate Division of the Supreme Court may be taken from a decree of the Surrogate’s Court or from an order affecting a substantial right made by a surrogate or by a Surrogate’s Court in a special proceeding.” This proceeding would seem to come within the purview of that section, and the order made by
Reaching, then, the merits of this ease, we think.the order of the surrogate was right. It is first challenged upon the ground that the finding of the surrogate that the notes were valueless was without evidence. We are satisfied that the testimony of the executor as to the declarations of the testator is incompetent evidence of the value of the notes, and is not proof upon which a finding of the surrogate can be made or sustained. At folios 64‘and 65 of the record, however, the executor swears without qualification that these notes were valueless. This evidence was given without objection. The executor was not cross-examined thereupon. While the witness has stated a conclusion of fact, which under proper objection would have been excluded as improper in form, nevertheless no objection was made. The presumption is that, if the objection had been made, the form of the question would have been corrected to ask for the facts from which this conclusion was drawn. The Comptroller cannot now be heard to say that the fact as to the value of the notes was found without sufficient evidence.
The appellant further contends that, notwithstanding the insolvency of the makers, inasmuch as the notes are given as legacies to the makers themselves, they should be assessed at their face value. It will hardly be claimed that if these notes were given by the will to
The statute, it will be seen, thus plainly provides for the appraisal of all property at its fair market value. No exception is made in cases where promissory notes are given to their makers, and the court is not authorized to read into the statute any such exception. If these views are right, they lead to an affirmance of the order.
All concurred.
Order affirmed, with costs.