Opinion
Argued February 27, 1900
Decided March 13, 1900
Joseph W. Middlebrook for appellant.
W.P. Prentice for respondent.
The order of the Appellate Division reversed the decree of the surrogate "upon the facts and the law." Under the Constitution the jurisdiction of this court is limited to a review of questions of law only. It, therefore, has no power to review the determination of the Appellate Division in reversing upon the facts. An examination of the record clearly shows that a question of fact was involved.
Eunice E. Huff, the respondent, claimed that Thorne gave her one thousand shares of the American Press Association stock of the value of one hundred thousand dollars ($100,000) before his death. In her testimony she makes several contradictory statements with reference to the transaction. The appraiser found that the transfer was made to her charged with a trust on her part to be performed of taking care of Thorne during his life, and that the remainder was intended to vest in her and take effect at and after his death. The surrogate, in confirming the report of the appraiser, says: "The testimony of Mrs. Huff is contradictory. The appraiser has adopted that version of her story which is most favorable to the state. In this I think he has adopted the correct rule. The witness is adverse. The result of her testimony means a difference of five thousand dollars ($5,000) to her. We must, therefore, assume that she would put that construction upon the transaction which would be most favorable to her, and most likely to relieve her of a tax." The Appellate Division reached a different conclusion. It adopted her claim that the gift was absolute and took effect at the time that it was made, and that the title to the stock vested in Mrs. Huff from that time. It is, therefore, apparent that a question of fact was involved which this court has no jurisdiction to review. ( Livingston v. City of Albany, 161 N.Y. 602.)
The appeal should be dismissed, with costs.
PARKER, Ch. J., O'BRIEN, BARTLETT, MARTIN, VANN and LANDON, JJ., concur.
Appeal dismissed.