In re the Transfer Tax Upon the Estate of Pincus

Cohn, J. (dissenting).

I dissent on the ground that a composition may not be had under section 233 of the Tax Law, in view of the fact that the contingency subject to which the property had been transferred occurred prior to the entry of an order finally and irrevocably fixing and determining the tax. This statute provides that such order shall be binding upon and conclusive against interested persons upon the entry thereof.

While the election is evidenced by a petition, duly filed, the composition tax does not become binding and irrevocably fixed until the surrogate “ shall make the necessary order.”

The order should be affirmed.

Order reversed, with costs, and the matter remitted to the Surrogate’s Court for further action in accordance with opinion.