Summary
In Matter of Scrimgeour (175 N.Y. 507, affg. 80 App. Div. 388, which affd. 39 Misc. Rep. 128) the surrogate vacated a decree imposing a tax upon certain reversions and remainders because, since the assessment, the act under which the tax had been laid had, in another case, been declared unconstitutional.
Summary of this case from Matter of TownsendOpinion
Argued June 2, 1903
Decided June 16, 1903
Louis Marshall for appellant.
William Murray for respondents.
Both parties mistakenly supposed that the estate was, under the law, subject to a transfer tax. The proposition was not litigated nor decided, but assumed. We think it was within the power of the surrogate, on an application to his discretion and favor, to open the case, relieve the respondents from the consequence of their mistake and set aside the order which had been erroneously made.
The order appealed from should be affirmed, with costs.
PARKER, Ch. J., GRAY, O'BRIEN, BARTLETT, HAIGHT, CULLEN and WERNER, JJ., concur.
Order affirmed.