County Court, Bronx County, December, 1917. [Vol. 102.

could be fixed and safely moved, said to the officer "Where the hell do you get off to tell us what to do we'll

do as we like, we don't care what you say," the evidence justifies a conviction for disorderly conduct, as it tends to a breach of the peace.

APPEAL from a judgment of conviction in the Magistrate's Court.

Charles B. McLaughlin, assistant district attorney, and Albert Cohn, deputy assistant district attorney, for people.

Gustav Gunkel, for defendants.

GIBBS, J. This is an appeal from a judgment convicting the defendants of disorderly conduct on the 19th day of August, 1917, in the Eighth District City Magistrate's Court. The magistrate imposed a fine of three dollars upon each of the defendants.

It appears from the record that on Saturday, August 18, 1917, at about three o'clock in the afternoon, the defendants were driving a truck of ashes along Fort Schuyler road, Bronx county. The complaining witness, a mounted officer attached to the municipal police force of the city of New York, gave them reasonable and proper instructions, which they disregarded. The complainant directed them to discontinue driving the truck which was then and there in an unsafe condition and a menace to the safety of other vehicles driving along the same highway. The complainant further testified that after warning the defendants and telling them to stand still until the truck could be fixed and safely moved they said to him, among other things, "Where the hell do you get off to tell us what to do we'll do as we like, we don't care what you

say

Misc.] Surrogate's Court, New York County, December, 1917.

The issue of fact was resolved by the magistrate against the defendants.

In my opinion, such language under the circumstances, addressed to a police officer in the proper performance of his duty, was conduct tending to a breach of the peace. Gratuitous insolence to police officers tending to cause disturbance and disorder upon a public highway is far too common in this city and should not be encouraged. It seems to me that it tends to lessen the respect of the community for law and order, which the police officer in the legitimate discharge of his duties represents.

The record discloses that both defendants received a fair and patient hearing. The verdict is just and punishment imposed far from harsh. Judgment of conviction affirmed.

Judgment affirmed.

Matter of the Transfer Tax upon the Estate of HETTY H. GREEN, Deceased.

(Surrogate's Court, New York County, December, 1917.)

Transfer tax-meaning of "doing business " - corporations — domicile — evidence-Tax Law, § 220(2) as amended by Laws of 1916, chap. 323.

A transfer tax proceeding being in the nature of an inquisition at the instance of the state, the common law rules of evidence have no strict application, and while the state should be liberally treated the proceeding should not be allowed to harass the citizen.

Where, it having been determined that a decedent at the time of her death was not domiciled in this state, the transfer tax proceeding was remitted for the purpose of appraising her estate as a non-resident, and it appears that for the two years immediately preceding her death she had no office in this state for the transaction of business, that she did not solicit nor transact business with the public or hold herself out as a lender

Surrogate's Court, New York County, December, 1917. [Vol. 102.

of money, but that her business activities were confined to receiving interest and dividends on her investments and investing in securities so much of her income as was not required for her living expenses, she was not "doing business" in this state within the meaning of section 220 (2) of the Tax Law, as amended by chapter 323 of the Laws of 1916.

Evidence considered and held that any business done by a domestic corporation in which decedent had a controlling interest at the time of her death was not her individual business and did not constitute the "doing of business" by her in this state within the meaning of the transfer tax statute.

APPEAL from an order assessing a transfer tax.

Lafayette B. Gleason (John B. Gleason, of counsel), for state comptroller,

Alexander & Green (Charles W. Pierson, of counsel), for executor.

FOWLER, S. The present appeal to the surrogate involves issues of residence and domicile already passed on, and they need not be further considered on this appeal. In addition the appeal now involves the regularity and validity of the appraiser's rulings on matters of so-called evidence in the proceeding for the appraisal of the estate of the late Mrs. Hetty Green. This proceeding was initiated to determine the amount of the succession taxes due to the state of New York. In the course of such proceeding the state comptroller claimed, first, that Mrs. Green died a resident of New York, or domiciled in the state of New York. This first contention, on a special certification to the surrogate, was decided adversely to the state of New York. 99 Misc. Rep. 582; affd., 179 App. Div. 890. The comptroller then next changed his theory of incidence and contended before the appraiser that Mrs. Hetty Green's capital was employed in business within the

Misc.] Surrogate's Court, New York County, December, 1917.

state of New York. It was in the course of this last contention that the appraiser's rulings on matters of evidence were made. The validity and correctness of these rulings are involved in this appeal.

A proceeding of this nature before the appraiser is not the trial of an action at law, and the common-law rules of evidence, wisely made binding in actions at law, have no strict application to such a proceeding as this. It is a fundamental error to assume that the common law of evidence, made for special occasions and trials in pais, pervades the entire jurisprudence of common-law countries. This proceeding is in the nature of an inquisition, at the instance of the state, to determine the amount coming to it. The tax could be levied in the absence of law without any such proceeding, and the state could determine for itself in any way it chose the amount of the tax. If there was error it could be formerly remedied by the old prerogative writs of certiorari or mandamus. The present Transfer Tax Law is a substitute for the old methods, and I venture to think a very fair and wise one, doing substantial justice in this state. But on such an inquisition it would be a wrong to the state if it were held too closely to rules of evidence only appropriate in actions at law. Of course, there are certain fundamental rules, not of evidence but of substantive law, which do bind the state in any proceeding, e. g., the constitutional mandate that a citizen shall be exempt from unreasonable searches.

But while the state on any such inquisition should be liberally treated, the proceeding should not be allowed to harass the citizen. The proceeding should be consistent with general principles of fair dealing, of justice, and of right. The state should not be allowed to inquire into matters entirely irrelevant nor should it be permitted to inquire concerning matters not germane

Surrogate's Court, New York County, December, 1917. [Vol. 102.

to the scope of the inquiry. That would be needlessly vexatious to the citizen.

The question of decedent's domicile having heretofore been submitted to me as stated above, and my decision to the effect that she was not domiciled in this state at the time of her death having been affirmed by the Appellate Division (179 App. Div. 890), the proceeding was remitted to the transfer tax appraiser for the purpose of appraising her estate as a non-resident of this state. Affidavits and schedules were filed with the appraiser, showing the net value of the tangible assets of the estate in this state, and the executor was examined before the appraiser and questions propounded to him by the state comptroller in relation to the business activities of the decedent during the two years prior to her death. These questions were intended by the state comptroller to elicit information concerning the business transactions of the decedent in order to bring her estate within the amendment effected by chapter 323 of the Laws of 1916. That amendment provides that a tax shall be imposed upon the transfer of property "when the transfer is by will or intestate law of capital invested in business in the state by a non-resident of the state doing business in the state either as principal or partner." By the language just quoted it will appear that in order to subject the intangible property of a non-resident to taxation in this state the following conditions must exist. First, such intangible property must be capital invested in business in this state; second, the non-resident owning such property must be doing business in this state, either as a principal or a partner.

From the testimony taken before the appraiser in relation to the business activities of the decedent in this state for the two years immediately prior to her death it appears that she had no office in this city for