In re Scrimgeour's Estate

Appellate Division of the Supreme Court of New York

In re Scrimgeour's Estate

80 N.Y.S. 636

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 6, 1903

StatusPublished

This text of 80 N.Y.S. 636 (In re Scrimgeour's Estate) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Scrimgeour's Estate, 80 N.Y.S. 636 (N.Y. Ct. App. 1903).

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Opinion

HOOKER, J.

The decree fixing the tax was made pursuant to chapter 76 of the Laws of 1899, and that chapter was declared unconstitutional by the Court of Appeals in Matter of Pell’s Estate, 171 N. Y. 48, 63 N. E. 789, 57 L. R. A. 540. After the decision in Matter of Pell, supra, and after the time to appeal from the decree had expired, the petitioners in this proceeding applied for an order vacating the taxing decree, adjudging the estate exempt from transfer tax, and directing the Comptroller to refund the moneys paid under the decree. An order was made and the Comptroller appeals.

It is conceded that the specific act under which the tax was imposed has been declared by the Court of Appeals to be unconstitutional, and it must follow that the decree of the surrogate’s court assessing and fixing the tax was void. The appellant urges that, although a void order or judgment of a court may be vacated by that court without restricting the aggrieved party to his remedy by appeal, still in this case the surrogate is in" fact not a surrogate at all when he is fixing a transfer tax, but, rather, a taxing officer, acting ministerially, and devoid of power, except that conferred upon him by the tax law, and that the surrogate, as such, has no power to vacate a decree made by the surrogate as taxing officer. Assuming that when he is fixing a tax, and making the. decree-assessing it, h'e is not acting as surrogate, as the appellant contends, yet the decree upon the taxation becomes a decree or order of this court, and we think that the language of the sixth subdivision of section 2481 of the Code of Civil Procedure, together with that of section 229 of the tax law (Laws 1896, c. 908) is-broad enough to confer upon him complete jurisdiction to vacate a void order of his court. This exact question was the subject of consideration in Matter of Coogan, 27 Misc. Rep. 563, 59 N. Y. Supp. hi, affirmed 162 N. Y. 613, 57 N. E. 1107, and we believe the conclusions reached there should be approved.

The order appealed from should therefore be affirmed, with $iO' costs and disbursements. All concur.

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HOOKER, J.

The decree fixing the tax was made pursuant to chapter 76 of the Laws of 1899, and that chapter was declared unconstitutional by the Court of Appeals in Matter of Pell’s Estate, 171 N. Y. 48, 63 N. E. 789, 57 L. R. A. 540. After the decision in Matter of Pell, supra, and after the time to appeal from the decree had expired, the petitioners in this proceeding applied for an order vacating the taxing decree, adjudging the estate exempt from transfer tax, and directing the Comptroller to refund the moneys paid under the decree. An order was made and the Comptroller appeals.

It is conceded that the specific act under which the tax was imposed has been declared by the Court of Appeals to be unconstitutional, and it must follow that the decree of the surrogate’s court assessing and fixing the tax was void. The appellant urges that, although a void order or judgment of a court may be vacated by that court without restricting the aggrieved party to his remedy by appeal, still in this case the surrogate is in" fact not a surrogate at all when he is fixing a transfer tax, but, rather, a taxing officer, acting ministerially, and devoid of power, except that conferred upon him by the tax law, and that the surrogate, as such, has no power to vacate a decree made by the surrogate as taxing officer. Assuming that when he is fixing a tax, and making the. decree-assessing it, h'e is not acting as surrogate, as the appellant contends, yet the decree upon the taxation becomes a decree or order of this court, and we think that the language of the sixth subdivision of section 2481 of the Code of Civil Procedure, together with that of section 229 of the tax law (Laws 1896, c. 908) is-broad enough to confer upon him complete jurisdiction to vacate a void order of his court. This exact question was the subject of consideration in Matter of Coogan, 27 Misc. Rep. 563, 59 N. Y. Supp. hi, affirmed 162 N. Y. 613, 57 N. E. 1107, and we believe the conclusions reached there should be approved.

The order appealed from should therefore be affirmed, with $iO' costs and disbursements. All concur.

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