#### In the Matter of the Appraisal of the Estate of Joshua W. Barnum, Deceased, under the Acts in Relation to the Taxable Transfers of Property. The Comptroller of the State of New York, Appellant; James W. Taylor and Mary R. Barnum, as Executors, etc., of Joshua W. Barnum, Deceased, Respondents.

Second Department,

December 30, 1908.

Surrogate — power to open decree — transfer tax — when order fixing same should not be opened.

By virtue of subdivision 6 of section 2481 of the Code of Civil Procedure empowering the surrogate to vacate, modify or set aside a prior decree or order, he may vacate an order fixing a transfer tax and refer the matter -back for reappraisement; but the power should be exercised only where the like power would be exercised by a court of record. If the exercise of tha-t power involves discretion, the circumstances under which the determination of the surrogate was made are subject to review in order to ascertain whether or not he abused his discretion.

Where a surrogate has fixed a transfer tax based upon an itemized valuation in the executor’s affidavit, such determination should be treated as a solemn decree of a court of record and should not be set aside on a petition by the executor, stating merely that by mistake his valuation was largely excessive, a statement supported solely by an appraisal at a much lower figure by real estate brokers.

Appeal by the Comptroller of the State of New York from an order of the Surrogate’s Court o"f the county of Nassau, entered in said Surrogate’s Court on the 15tli day of July, 1908.

*Henry P. Keith [Philip Huntington*with him on the brief], for the appellant.

*William N. Dykman [Francis L. Archer*with him on the brief], for the respondents.

Per Curiam:

The State Comptroller has appealed from an order of the surrogate of Nassau county, made on the 6th day of July, 1908, which vacated an order made on the 20th day of December, 1907, attesting and fixing the transfer tax upon the estate, and referring the matter back to the transfer tax appraisers for reappraisement and *419reassessment of the real and personal property owned by the deceased. The surrogate’s order was made on the petition of one of the executors, which set forth that the assessed value of the real property was excessive and erroneous, and that he was mistaken in respect thereto in placing it at the sum of $290,000 in his affidavit submitted to the transfer tax appraisers, and also upon the affidavit of two real estate brokers and appraisers living where the real property is situated, showing that the property is worth but $139,700. The transfer tax has not been paid. The executor who made the original affidavit upon the first appraisement herein itemized the pieces of real property, and swore that in the aggregate they were worth $298,200.

Section 2481 of the Code of Civil Procedure provides, at subdivision 6, that “ A surrogate, in court or out of court, as the case requires, has power: * * * To open, vacate, modify, or set aside, or to enter, as of a former time, a decree or order of his court; or to grant a new trial or a new hearing for fraud, newly discovered evidence, clerical error, or other sufficient cause. The powers, conferred by this subdivision, must be exercised only in a like case and in the same manner, as a court of record and of general jurisdiction exercises the same powers.” Under this section there can be no question but that the surrogate had the power to vacate the prior order and remit the matter to the appraisers for rehearing and reappraisement, but this power may be exercised only as the same power would be exercised by a court of record; and if the surrogate attempts to exercise it in other manner or in other cases, he does what is unwarranted; and if the exercise of the power involves discretion, the circumstances under which the determination of the surrogate was made may be reviewed to ascertain whether or not there has been an abuse of such discretion.

The first determination of the surrogate resulted fairly in a judicial determination, for the purposes of the proceedings, of the value of the property. Such judicial determination may be treated no more lightly than the solemn determinations of courts of record, and for fraud, newly-discovered evidence and the like, should be set aside and new hearings granted only under circumstances similar to those that are held sufficient to warrant the granting of a new trial in courts of record. *(Matter of*Lowry, 89 App. Div. 226.) *420Ho such showing is made in this case and none is seriously attempted. There must be a finality about determinations of this character. To affirm the • order appealed from would be wholly to disregard such principles.

The order must be reversed, with costs, and the reappraisement denied, with costs.

Woodward, Jerks, Hooker, Gaynor and Hiller, JJ., concurred.

Order of the Surrogate’s Court of Hassau county reversed, with costs, and reappraisement denied, with costs.