This is a motion to strike out one of two bills of costs taxed and included in the judgment by the Surrogated Court of Westchester county upon the remittitur sent to said court by the Court of Appeals.
There were two appeals in this case, one by the Westchester Society for the Prevention of Cruelty to Children and the other by the Yonkers Public Library. To each of said appellants was bequeathed by Ervin Saunders, in his last will and testament, the sum of $50,000. The transfer tax appraiser, the surrogate, the Appellate Division of the Supreme Court and the Court of Appeals all decided that such bequests were liable for the transfer tax.
The motion should be denied. In this case there were two notices of appeal, two notices of argument, two notices of issue and two briefs were submitted, one by each appellant. The test as to whether or not two bills of costs should be taxed is, were two separate issues tried and determined? Concededly the two corporations mentioned were organized under separate acts of the legislature, and the articles of such incorporation materially differed in every respect. This being so, one corporation might be subject to the transfer tax and the other corporation might be exempt from the same. This would primarily depend upon the purposes for which said corporations were organized. This could only be determined by an examination of the said articles of incorporation. Matter of White, 118 App. Div. 869; Matter of Moses, 138 id. 525; Matter of Robinson, 80 Misc. Rep. 458. Affirmed by the Court of Appeals in a recent decision.
Clearly there were two distinct and separate issues tried and determined in this case. Assuming that the decision had been that one corporation was exempt from the tax and that the *350other was taxable, then and in that case there would be no doubt but that each successful party would be entitled to a separate bill of costs. Simply because the two issues happened to be determined the same way by the Court of Appeals can make no difference. The Court of Appeals decided adversely to the appellants 66 with costs.” This entitles the successful party to costs against both appellants. Reynolds v. Ætna Life Ins. Co., 30 Misc Rep. 152; Matter of City of New York, 62 id. 61; affd., 129 App. Div. 929.
Motion denied, without costs.