It was a tax upon the privilege of succession ( Matter of Penfold, 216 N.Y. 163); and the privilege of succession under certain defined circumstances. At once came the question as to when this tax was to be paid. How about dower ( Matter of Weiler, 139 App. Div. 905); or curtesy ( Matter of Starbuck, 137 App. Div. 866); or of ante-nuptial settlement ( Matter of Baker, 178 N.Y. 575); or of joint tenancy ( Matter of Klatzl, 216 N.Y. 83)? In all these cases a portion of the estate vested in the deceased passed upon his death to another.

Accordingly, the court was precluded from construing the provisions of the statute to mean other or more than its plain language indicates. ( Wiley v. Solvay Process Co., 215 N.Y. 584; Archer v. Equitable Life Assurance Society, 218 id. 18; Matter of Starbuck, 137 App. Div. 866; People v. Long Island R.R. Co., 194 N.Y. 130.) Under the construction given to this statute by the Trial Term, a plaintiff well might be placed in a precarious position. If by delivery of the summons to the sheriff he were to lose control of the process in his action, he might lose also his cause of action, because of the sheriff's failure in his duty, or because for some other reason he was unable to perform it. It was not the purpose of the statute to thus jeopardize or curtail plaintiff's rights, but to secure and enlarge them, and to enable him to preserve his cause of action for sixty days beyond the original time limitation.

The court has the province of interpretation, but no function of statutory enactment. ( McCluskey v. Cromwell, 11 N.Y. 593; Matter of Starbuck, 137 App. Div. 866; Matter of Tilley, 166 id. 243.) There would seem, therefore, to be no warrant for the assessing of this part of the tax, and the decree appealed from in that respect should be reversed, with costs, and the matter remitted to the surrogate for action.

Mr. Justice WOODWARD, however, added: "If the Legislature deems such dispositions of property to be properly taxable that is a question which may be dealt with in the proper department, but this court has no power to enlarge upon the scheme of tax laws. (See Matter of Starbuck, 137 App. Div. 866; Matter of Green, 144 id. 232-234, and authorities cited.)" ( Matter of Tilley, 166 App. Div. 240, 243.

(Tax Law [Consol. Laws, chap. 60; Laws of 1909, chap. 62], § 220, as amd. by Laws of 1911, chap. 732.) If the Legislature deems such dispositions of property to be properly taxable that is a question which may be dealt with in the proper department, but this court has no power to enlarge upon the scheme of tax laws. (See Matter of Starbuck, 137 App. Div. 866; Matter of Green, 144 id. 232-234, and authorities cited.) The order appealed from should be affirmed, with costs.