and 100 New York State Reporter an immediate right of action accrued thereon to the plaintiff, on the mortgage debt becoming due. It was, by the contract, the duty of the defendant to pay the mortgage when the debt matured." To the same effect are Railroad Co. v. Howard, 7 Wall. 392; Cardell v. McNiel, 21 N. Y. 336; Warren v. Wilder, 114 N. Y. 209, 21 N. E. 159. The obligation, then, which the relator assumed with reference to these bonds being direct, it was and is a debt deductible under the statute (section 12), and not an indirect liability nondeductible under section 6. In the view I have taken, the nature and extent of the relator's interest in the property of the Albany & Susquehanna Railroad Company is quite immaterial. The assessment here reviewed is an assessment of the relator's personal property. If the interest is real estate, then the assessed value of that real estate is to be deducted from its gross value, in order to arrive at the actual value of capital stock and surplus as provided for in the tax laws (People v. Coleman, 126 N. Y. 433, 27 N. E. 818); if personalty, the actual value of the leasehold interest must be added to the rest of the relator's personal property. In either event, debts are to be deducted. As the amount of the deduction by reason of the indebtedness in the bonds exceeds the amount declared taxable by the commissioners, it follows that the assessment must be canceled. Ordered accordingly. (31 Misc. Rep. 666.) In re RICHARDSON'S ESTATE. (Surrogate's Court, New York County. June, 1900.) EXECUTORS-Proceeding TO DISCOVER ASSETS. Under Code Civ. Proc. § 2707, as amended in 1893, authorizing the examination of a person having knowledge of personal property which should be delivered to an executor or included in his inventory or appraisal, and refusing to give such knowledge to him, a bank which from time to time had custody of assets deposited by decedent as security for loans can be required to inform the executor as to what those assets were. In the matter of the estate of Joseph Richardson, deceased. Motion to vacate an order authorizing the examination of a bank having knowledge of decedent's assets. Denied. Nicoll, Anable & Lindsay, for petitioner. THOMAS, S. Section 2707, Code Civ. Proc., as enacted in 1880 and amended in 1893, and as it now stands, authorizes an examination of a person who has knowledge or information concerning money or other personal property which should be delivered to an executor or administrator, or included in an inventory or appraisal, and who refuses to impart such knowledge or information, or to disclose any other fact which will aid such executor or administrator in making discovery of such property, so that it cannot be inventoried or appraised. The remedy is not confined to a proceeding against a person shown to be in possession of the property. Indeed, as pointed out by the commissioners to revise the Code, in their note to section 2712, no decree can be made by the surrogate which shall pass upon a question of title, and the only decree possible is confined to a determination of the question of possession. The remedy is a useful one, and the legislature clearly intended to confer the power upon this court to administer it. That it is in the nature of an investigation which cannot end in a decree requiring the person proceeded against to do or to refrain from doing any act beyond testifying is not an objection available to the person required to testify. The chapter of the Code in which the section is placed requires an executor or administrator to procure an appraisal and inventory, and the examination is to be had so as to make such appraisal and inventory possible. The corporation now sought to be examined was the banker of the decedent, and from time to time had custody of assets deposited by the decedent with it as security for loans. It is now asked merely to inform the executor of the will of its customer as to what those assets were. The motion to vacate the order is denied, and the examination will be required to proceed. (Surrogate's Court, New York County. May, 1900.) 1. WITNESSES-COMPETENCY-TRANSACTION WITH DECEDent. Code Civ. Proc. § 829, providing that a party or person interested in the event of an action may not testify in his own behalf as to a personal transaction between himself and a deceased person, does not render a legatee incompetent to testify, in a proceeding under the transfer tax law to appraise an estate, as to transactions between himself and decedent. 2. TRANSFER TAX-PROPERTY TO BE TAXED-LOCATION. Where a nonresident made loans to one also a nonresident, but whose business was in this state, and after his death such loans were inventoried as a balance of account with him as banker, and no voucher or pass book was given deceased by such person, nor did deceased ever draw checks on the account, nor was any agreement shown for repayment, other than on oral demand, such balance was not properly within the state, and hence not subject to the transfer tax. In the matter of the estate of Margaret E. Bentley, deceased. From an appraisal of said estate under the transfer tax law, the legatees appeal. Reversed. John C. Gulick, for appellants. Charles M. Russell, for comptroller. THOMAS, S. In this proceeding to assess a transfer tax, a legatee, upon whose interest in the estate a tax is attempted to be levied, is not precluded from testifying by any provision of section 829, Code Civ. Proc. In re Gould's Estate, 19 App. Div. 352, 354, 46 N. Y. Supp. 506, affirmed in 156 N. Y. 423, 51 N. E. 287. And the affidavit of Rosaline H. Towar is therefore competent evidence. The appeal to the surrogate "is in the nature of an application for a rehearing, upon and 100 New York State Reporter which new evidence may be taken bearing upon the questions involved." In re Westurn's Estate, 152 N. Y. 89, 104, 46 N. E. 315. And the affidavit of Thomas E. Towar may also be considered. From these two affidavits it appears that the decedent was the mother of Mrs. Towar, and resided with her and her husband, Thomas E. Towar, at Jersey City. From time to time she made loans to Mr. Towar, and the balance due thereon is the fund which the appraiser determined to be taxable. These loans and all repayments thereon were all made at Jersey City, where all the parties resided, except that some checks, of unascertained amounts, were mailed at Jersey City to the address of Mr. Towar, in New York, where he carried on business as a broker. In the inventory filed in New Jersey this fund is described as "balance of account with Thomas H. Towar, banker, at decedent's death." It is affirmatively shown that no pass book or voucher of any kind was delivered by Mr. Towar to the decedent, and it does not appear that the decedent ever drew checks upon the account, or that it was, by the contract between her and Mr. Towar, to be repaid, otherwise than upon oral demand on him. Under these circumstances, the whole transaction was a series of loans from a resident of the state of New Jersey to another resident of that state, payable there; and the balance remaining at the time of the death of the decedent was not properly within this state, subject to the transfer tax. The fact that in the inventory the debtor is described as a banker cannot vary this result. It has never been determined that every debt of a person who does business as a banker has a situs in this state, within the meaning of the transfer tax law. A deposit made with a banking corporation or trust company or savings bank in this state, to be repaid on checks or drafts in writing presented to the corporation at its place of business in this state, and not otherwise, is taxable here, as was said in Re Houdayer's Estate, 150 N. Y. 37, 41, 44 N. E. 718, 719, 34 L. R. A. 235, 237, "because the owner must come here to get it." The test prescribed in the case cited excludes from taxability a debt due to a nonresident decedent by a nonresident debtor. These views render it unnecessary to examine the questions raised as to the amount of tax to be charged against the interest of the infant legatee. The appeal will be sustained, and an order made declaring the estate of the decedent exempt from the transfer tax. Settle order on notice. Appeal sustained. (53 App. Div. 453.) In re TOBIN. (Supreme Court, Appellate Division, Second Department. July 17, 1900.) MUNICIPAL CORPORATIONS-FIRE DEPARTMENT-WIDOWS' AND ORPHANS' RELIEF FUND-MANDAMUS-STATUTES. Act 1888, tit. 13, § 15, enacts that the comptroller "shall" deduct $1 from the monthly pay of each fireman, which shall constitute the fire department widows' and orphans' relief fund, $500 of which shall be paid to the widow of a deceased contributing member. Laws 1889, c. 153, amends Act 1888, tit. 13, § 15, by increasing the allowance to the widow to $1,000, and providing for a monthly deduction of $1 from the pension allowed retired firemen, to become a part of the widows' and orphans' relief fund, and directs the commissioner of the fire department to cause the trustees of the widows' and orphans' relief fund to pay from the fund to the widow of a deceased retired pensioner of the department such sum of money as the widow would have been entitled to if the deceased member had not been retired. Held, that the fact that at the time of a fireman's retirement, after 10 years of membership, he notified the secretary of the department and of the widows' and orphans' relief fund that he did not desire his wife to receive anything from the fund, but desired his interest in the fund to lapse, and received his pension until his death without any deduction, will not deprive the widow of the right to participate in the fund, since the rights of the widow were not dependent on the ability or willingness of the pensioner to continue his contributions to the fund. Appeal from special term, Kings county. Application of Margaret Tobin for a writ of mandamus against John J. Scannell, fire commissioner of the city of New York. Plaintiff appeals from an order denying the application. Reversed. Argued before GOODRICH, P. J., and BARTLETT, WOODWARD, and HIRSCHBERG, JJ. Eugene V. Brewster, for appellant. William J. Carr (Luke D. Stapleton, on the brief), for respondent. HIRSCHBERG, J. The relatrix is the widow of John J. Tobin, who died on the 6th day of April, 1896. He had been a member of the uniformed force of the fire department of the city of Brooklyn for more than 10 years, and on the 1st day of November, 1895, was retired on pension. The relatrix's application was for a peremptory writ of mandamus requiring the respondent, John J. Scannell, as fire commissioner of the city of New York, to pay to her the sum of $1,000 from the Brooklyn fire department widows' and orphans' relief fund, pursuant to section 15 of title 13 of the charter of the late city of Brooklyn (chapter 583, Laws 1888, as amended by chapter 153, Laws 1889), and which fund, by virtue of the provisions of the charter of the city of New York (chapter 378, Laws 1897), is now embraced in, and a part of, the New York fire department life insurance fund, of which the respondent is trustee. By the latter charter the obligations and duties are also transferred with the fund. The relatrix's application was successfully resisted on the ground that her husband at the time of his retirement had notified the then secretary of the fire department of the city of Brooklyn, and acting secretary of the trustees of the Brooklyn fire department widows' and orphans' relief fund, that because of his relations with his wife he did not desire her 66 N.Y.S.-7 and 100 New York State Reporter to receive anything, as his widow, from the fund, but wished whatever interest he had in the fund to lapse. During the few months between his retirement and death he accordingly received his pension, without any deduction being made therefrom for the benefit of the fund; and it is claimed by the respondent, and was apparently held by the court at special term, that the voluntary withdrawal by the deceased at the time of his retirement from future participation in the fund operated to destroy and defeat any right therein which the relatrix would otherwise have had. I am of opinion that the relatrix is entitled to the money. By the provisions of sections 14 and 15 of title 13 of the Brooklyn charter, as constructed by the consolidation act of 1888, supra, two distinct funds were created,-one known as the "Firemen's Insurance Fund," and the other as the "Brooklyn Fire Department Widows' and Orphans' Relief Fund." The firemen's insurance fund was to be made up from fines imposed upon members of the department by way of discipline, and collectible from pay or salary; from rewards, fees, proceeds of gifts and emoluments on account of extraordinary services of any member of the department; from moneys received for penalties; and from the percentage or tax on the receipts of the foreign fire insurance companies doing business in the city of Brooklyn. The provisions for the creation of this fund are embodied in section 14, and it is apparent that no regular voluntary contribution towards it is contemplated on the part of any officer or member of the force, and that the only way such persons could contribute to it was by being subjected to the imposition of fines or penalties, or by earning a reward by the rendition of extraordinary services, a contribution which could only be made in either case by an officer or member in active service. By section 15 of title 13 of the act of 1888 it was provided that any officer or member of the department who should become permanently disabled while in the performance of duty, or who after 10 years' membership should become superannuated by age or rendered incapable of performing duty by disease, might be placed on the pension roll of the firemen's insurance fund, and granted and paid a pension from the fund of not exceeding one-half his salary. The section further provided that there "shall be deducted by the comptroller of the city of Brooklyn, from the monthly pay of each officer and fireman of said department, and from that of the other employés of the said department, as shall desire to avail themselves of this provision, the monthly sum of one dollar, which shall be received and held by the trustees of the insurance fund herein created, in the like manner as the other moneys herein provided to be paid to them, and which shall be known as the Brooklyn Fire Department Widows' and Orphans' Relief Fund; and in the case of the death of any member or employé of said department in the service thereof, and so contributing, there shall be paid to the widow or legal representative of such deceased member or employé, the sum of five hundred dollars out of the money so assessed." By the provisions of this section it is apparent that the Brooklyn fire department widows' and orphans' relief fund was made up wholly from monthly deductions from salary, compulsory so far as concerned the officers and firemen of the department, and optional with re |