People ex rel. Ward v. Sutton

186 A.D. 550 | N.Y. App. Div. | 1919

Per Curiam:

Although, from reading the record, we are inclined to give - more weight to the opinion of the group of expert witnesses for the defendants, and although it is quite evident that the group for the relators were mistaken in their opinion as to several leading recent sales in the general locality, which they used as bases for judgment, we would feel required by the settled rules governing our determination in such cases to sustain the conclusion, of the referee, confirmed as it has been by the court at Special Term, were it not for two undisputed facts appearing in the record, which are of great force and do not appear to us to have been duly considered either by the relators’ experts, the referee or the Special Term. The first of those two important, undisputed facts is that in October, 1916, the relators took the usual proceedings to have the State death transfer tax upon the estate determined, and therein presented to the transfer tax appraiser of Westchester county the affidavit of an expert selected by them, which gave the value of the property at $275,000; and their application based thereon for the fixing of the tax upon that basis was filed in the office of the clerk of the Surrogate’s Court on May 3, 1917, and the tax fixed accordingly, and no appeal was taken. Indeed the leading relator here made in that proceeding his own affidavit to that valuation as of October 18, 1915, the date of death. The original papers in that proceeding were produced from that office and offered in evidence by the defendants’ counsel and appear to have been excluded by the referee, mistakenly, as we think. The expert so employed by the relators was examined before the referee by counsel for defendants, and testified that upon that employment he, in October, 1916, valued the property at $236,000. Here again the referee excluded the affidavit in the transfer tax proceeding. According to the expert’s testimony the valuation then placed was $236,000, whereas, according to the testimony of the executor, the valuation given by him was $275,000. If the papers themselves had been received in evidence, this discrepancy might not appear. Here, now, we have this very anomalous condition, namely, that at the relators’ own application and suggestion the value of the property at the death of the testator, on October 18, 1915, was for the purpose of the State death transfer tax fixed at $275,000, or, giving the respondents the benefit of the discrepancy, at $236,000, whereas the referee and the Special Term have fixed that value one year later at $191,250. Evidently there is something wrong somewhere. We think that the transfer tax proceedings, being the voluntary-action of the relators, should have been received in evidence against them, and that if they had demonstrated what the proofs indicate they would, they would have made the weight of the evidence sustain the valuation of the assessors.

The second important undisputed fact referred to above is that it is plain from the proofs that during the four years (1911 to 1915) the testator spent not less than $200,000 in improving the property, which, with the initial cost of the farm in T911, $110,200, made the cost of the property, all incurred within a comparatively brief time before the assessment, exceed $300,000. There is nothing in the evidence or in our common knowledge to indicate that in the year between the death of the testator and the assessment there had been any general depreciation in the value of such property in that locality. Indeed, we. have in many instances in other cases sustained a finding that the new railroad through that locality has tended to a general enhancement of values. Moreover, there is no pretense even that the improvements made by Mr. Ward upon the property were out of proportion to such an estate in that neighborhood. This much the leading expert for the relators admitted, except that he claimed that the dairy barns had too much hay space for the extent of the mowing fields upon the tract. That expert, moreover, practically rejected the cost of the improvements as an element of weight in valuing the property, and the other experts for the relators followed his lead. Indeed, he admitted that he did not even inquire as to the cost, and he acted upon the general theory that “ hardly ever does [sic] the improvements add to the price of the property it cost, that is never so.” The contrary is clearly the general rule, namely, that improvements do add to the value at least their structural cost, although there may be instances where they do not, as where some rich man, Jones for instance, builds a mansion in an entirely inappropriate locality and it comes throughout the neighborhood to be known as “ Jones’ Folly.” (Matter of City of New York, 198 N. Y. 84, 87.) We had a case of that exceptional sort before us a few years ago where, in a poor part of the city of Middletown, a man constructed at great expense a fine mansion utterly inappropriate to its surroundings. (Matter of Horton, 170 App. Div. 949.) There is, however, in this record no evidence to warrant the inference that this is any such instance.

As to the estimate of the cost of the improvements as fully $200,000, above given, the evidence is far from satisfactory upon that subject. Although those expenses had so recently been incurred, no exact proof of them was made. Defendants’ counsel called the leading executor as their own witness and attempted to prove by him the fact, but he evaded the matter, professing ignorance, which does not appear to be likely. We think that the estimate of $200,000 is conservative. We cannot doubt that the relators could have proved that cost had they desired to do so. It is inconceivable that a business man like the late Mr. Ward did not leave data from which the cost of those improvements, so recently made, and which evidently were the fad of his last three or four years, could not have been ascertained by his executors. We think that the referee and the Special Term should" have been advised of that cost. Prices of building materials had, as matter of common knowledge, advanced materially during the interim.

Upon the whole we are not satisfied that the case has been fairly and fully tried. It seems to us that the weight of the evidence as it stands does not warrant any reduction of the assessment, and that there should be a new trial or hearing. It seems to us, moreover, that it would be well to have such new hearing before the official referee residing in the Ninth Judicial District.

The final order appealed from should be reversed and a new hearing directed, the same to be had before the Hon. Michael H. Hirschberg as official referee, with costs to abide the event.

Jenks, P. J., Mills, Putnam, Kelly and Jaycox, JJ., concurred.

Final order reversed and a new hearing directed before Hon. Michael H. Hirschberg, official referee, with costs to abide the event.