Opinion
February Term, 1902.
Sol Kohn, for the appellant.
Julius Offenbach, for the respondent.
Present — VAN BRUNT, P.J., PATTERSON, INGRAHAM, HATCH and LAUGHLIN, JJ.
On the 17th of May, 1900, Joseph Ullman, executor of the last will and testament of Henry P. Sondheim, presented his petition to the Surrogate's Court of the county of New York, setting forth that his testator died on the 9th day of May, 1896, leaving a last will and testament which was admitted to probate by the surrogate of the county of New York in June, 1896, and that as the petitioner is informed and believes, the property of the said deceased, or some portion thereof, or some interest therein, may be subject to the tax imposed by law in relation to taxable transfers of property, and thereupon the petitioner prayed that some competent person might be appointed as appraiser as provided by law. Thereupon, and on the 20th of June, 1900, one of the surrogates of the county of New York made an order by which he directed Robert Mazet, Esq., one of the appraisers appointed by the State Comptroller under chapter 658 of the Laws of 1900 (amdg. Laws of 1896, chap. 908, § 230), to fix the market value at the time of the transfer of the property which was of the above-named decedent and which was subject to the payment of any tax imposed by article 10 of chapter 908 of the Laws of 1896 and the acts amendatory thereof and supplemental thereto. Subsequently, the petitioner served upon the comptroller of the city of New York a notice of motion "to resettle the order entered herein on the 29th day of June, 1900, by appointing as appraiser the person directed in said order by the surrogate, under the Laws of 1900 to act, or by appointing as appraiser some other competent person to be named by the surrogate." The surrogate refused to resettle the order, and the executor now appeals from the order entered declining to resettle the original order and also from the original order.
The surrogate's order denying the motion to resettle his first order is not appealable. It rested entirely within the discretion of the surrogate whether or not he would change his order as originally made, and it is not for this court to direct or control him in the exercise of his discretion.
Concerning the appeal from the original order, we are unable to see that the surrogate had any other power or authority than to direct one of the persons appointed pursuant to the provisions of chapter 658 of the Laws of 1900 to act as an appraiser. When the person directed to make the appraisal by order of the surrogate shall have made his report, it will be time enough to consider the questions the appellant now desires this court to pass upon.
The appeal from the order denying the motion to resettle is dismissed, with ten dollars costs, and the order directing the appraisal to be made must be affirmed, with ten dollars costs and disbursements.
Order directing appraisal affirmed, with ten dollars costs and disbursements. Appeal from order denying resettlement dismissed, with ten dollars costs.