Opinion
June 25, 1963
Order entered October 4, 1962, adjudging improper the inclusion in the estate of Paris G. Singer, deceased, a nonresident, of real property located in New York over which he exercised a power of appointment, unanimously modified, on the law, to the extent of striking the second decretal paragraph, and, as so modified, affirmed, with $20 costs and disbursements to respondent. It is not within the jurisdiction of the Surrogate's Court to order the State Tax Commission to refund any part of the tax paid. The remedy is a proceeding under article 78 of the Civil Practice Act. ( Matter of Shepard, 225 App. Div. 782.)
Concur — Breitel, J.P., Rabin, McNally, Eager and Steuer, JJ.