In re the Transfer Tax upon the Estate of Sack 234 A.D. 696

Motion for leave to appeal to the Court of Appeals granted. The following ques*697tions are certified: (1) Was it the duty of the surrogate on the facts presented to vacate the pro forma order of taxation on the ground that the taxing statute was unconstitutional? (2) Was it a matter of discretion with the surrogate to grant or deny the motion, and if discretionary, was the discretion properly exercised? (3) Did the voluntary payment of the tax in the proceeding instituted before the surrogate constitute a waiver of the question of the constitutionality of the tax imposed under the statute? Present — Lazansky, P. J., Young, Kapper, Carswell and Davis, JJ.