Both parties mistakenly supposed that the estate was, under the law, subject to a transfer tax. The proposition was not litigated nor decided, but assumed. We think it was within the power of the surrogate, on an application to his discretion and favor, to open the case, relieve the respondents from the consequence of their mistake and set aside the order which had been erroneously made.

The order appealed from should be affirmed, with costs.

Parker, Ch. J., Gray, O’Brien, Bartlett, Haight, Cullen and Werner, JJ., concur.

Order affirmed.