Surrogate's Court, New York County, February, 1918. [Vol. 102.

Matter of the Estate of PAULINE ERMANN, Deceased.

(Surrogate's Court, New York County, February, 1918.)

Transfer tax-power of state comptroller to commence proceedings to compel payment of statutes - surrogates.

The state comptroller is vested by statute with the exclusive power to commence proceedings to compel payment of a transfer tax.

Where decedent at her death had in a safe deposit box in Berlin, Germany, securities of great value, the surrogate, though the executor alleges he had been and will be unable to obtain possession of them until after the war now existing between the United States and the Empire of Germany, has no authority to grant an order postponing the collection of the transfer tax upon the estate until that time.

APPLICATION by executor of decedent's estate for an order postponing collection of transfer tax, without penalty, upon certain securities mentioned in the petition.

M. H. Winkler, for executor.

Lafayette B. Gleason, for state comptroller.

FOWLER, S. This is an application by the executor of decedent's estate for an order postponing the collection of the transfer tax, without penalty, upon certain securities mentioned in the petition.

The decedent died November 21, 1916. At the time of her death she had on deposit in a safe deposit box in Berlin, Germany, certain securities having a value of approximately $200,000, and the executor alleges that he has been unable to obtain possession of those securities and will be unable to get possession of them until

Misc.]

Appellate Term, First Department, March, 1918.

after the termination of the state of war now existing between the United States and the Empire of Germany. A transfer tax of $3,934 has been assessed upon the interests of the legatees in the estate.

The power of the surrogate in relation to the assessment and collection of taxes imposed upon the transfer of property is derived exclusively from the tax statute. There is no provision in that statute which authorizes the surrogate to postpone the collection of a tax that has been duly imposed. He may remit the penalty for non-payment of the tax from ten per cent to six per cent per annum, but he has no power to direct that a tax which has been duly assessed and remains unpaid for more than eighteen months after the death of a decedent shall not bear interest. The state comptroller is given the exclusive power under the statute to commence proceedings to compel payment of the tax, and the surrogate has no authority to interfere with the enforcement of such payment by the comptroller. The application is therefore denied.

Application denied.

LOWREY H. LIGHTNER, Respondent, v. HARTMANNBLANCHARD CO., Appellant.

(Supreme Court, Appellate Term, First Department, March, 1918.)

Motions and orders City Court of city of New York appeal - default-rule 33 of General Rules of Practice.

actions

A defendant in a City Court must move to open its default before taking any other steps, and where on motion of the plaintiff, under rule 33 of the General Rules of Practice, for an order declaring that defendant had waived its right to make a case on appeal, the court made an order the practical effect of which was to extend defendant's time to make a case and denies defendant's motion to resettle such order by further

Appellate Term, First Department, March, 1918. [Vol. 102.

extending the time in which to make and serve a case, plaintiff's motion to dismiss defendant's appeal from both of such orders should have been granted; the first motion in no way affected defendant's right to move to open its default and the last motion was properly denied upon the ground that it was improper to make a new order under the guise of a resettled order containing provisions not asked for on the original motion.

MOTIONS to dismiss two appeals from orders of the City Court of the city of New York.

Charles R. Stewart, for appellant.

Wm. L. Bowman, for respondent.

GUY, J. The defendant's time in which to make and serve a proposed case on appeal having expired the plaintiff moved under rule 33 of the General Rules of Practice for an order declaring that the defendant had waived its right to make a case. The defendant filed opposing affidavits to the motion but did not ask therein that its default be opened or that its time to make a case be extended and advanced no reason as to why it had not applied for an extension of time prior to its default, which is an essential element of an application for relief. Gamble v. Lennon, 9 App. Div. 407. Nevertheless the court below made an order the practical effect of which was to extend the defendant's time in which to make a case. Subsequently the defendant, claiming that it could not comply with the terms of this order, moved to resettle the same by further extending its time to make a case, and this motion being denied it appealed from both orders. The plaintiff moves to dismiss both appeals. The motions must be granted. The defendant concededly was in default in making and serving a case. No other

Misc.] Appellate Term, First Department, March, 1918.

steps could be taken by it except to move to open its default. Rothschild v. Rio Grande Western R. Co., 9 App. Div. 406; Vandenbergh v. Mathews, 52 id. 616. In granting an unasked favor by the terms of the first order no substantial right of defendant was impaired, neither did the later denial of defendant's motion to resettle the order affect the defendant's rights injuriously. The defendant was still in default and its right to move to open such default was in no way impaired by these orders. The last motion was properly denied for the reason that the resettlement of an order is for the purpose of correctly expressing the decision of the court or correctly reciting the papers upon which it is made. Butterfield v. Bennett, 30 N. Y. St. Repr. 302. It is improper to make a new order under the guise of a resettled order containing provisions not requested upon the original motion. Skeele Coal Co. v. Baker, 167 App. Div. 920; Wingrove v. German Savings Bank, 2 id. 479.

It is evident that the defendant appreciates the situation as the moving papers show and it is not disputed that it had already made a motion in the lower court to open its default and permit it to make and

serve a case.

Motions granted and appeals dismissed, with ten dollars costs in each case.

BIJUR and PHILBIN, JJ., concur.

Appeals dismissed, with costs.

42

Appellate Term, First Department, March, 1918. [Vol. 102.

SIGMUND ASHNER, Respondent, v. FARMERS LOAN AND TRUST COMPANY, Appellant.

(Supreme Court, Appellate Term, First Department, March, 1918.)

Mortgages-extension of

attorneys.

contracts-agency- breach of guaranty

Where the correspondence by letter between plaintiff and defendant as to an extension of the times of payment of several mortgages in its custody upon real estate owned by plaintiff shows that defendant did not undertake to bind the mortgagees, its principal, but merely to conduct negotiations and thereby bring the minds of the mortgagor and mortgagees into accord, interposing the condition for its own and its principals' protection that no binding obligation should arise until the minds of the principals met in the formal execution of the appropriate papers extending the mortgages, it must be held that no agreement of any kind either in form or reality was consummated between plaintiff and defendant as agent of the mortgagees and defendant cannot be held liable for breach of warranty of authority to enter into such a contract.

Where as a result of defendant's misrepresentation of fact that the mortgagees would extend the mortgages at four and one-half per cent plaintiff was misled and induced to pay the attorney of the mortgagees for an extension agreement, which was never executed, defendant is liable for the amount of money so expended by plaintiff.

APPEAL by defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, in favor of the plaintiff.

Geller, Rolston & Horan (George S. Mittendorf, of counsel), for appellant.

Lind & Pfeiffer (Alfred D. Lind, of counsel), for respondent.