
    
      In re Lexington Ave. In re Thayer.
    
      (Supreme Court, General Term, First Department.
    
    February 18, 1892.)
    Street Assessments—Confirmation—Notice—Death of Property Owner.
    Where notice of motion to confirm a report of commissioners of estimate and assessment in a proceeding for street opening has been duly given to a party who afterwards dies, his executors are not entitled to be made parties to the proceedings, nor to notice of the motion.
    Appeal from special term, Hew York county.
    In the matter of opening Lexington avenue from 97th to 102d street. In re Stephen H. Thayer. The executors of Stephen H. Thayer appeal from an order of commissioners of estimate and assessment.
    Affirmed.
    Argued before Van Brunt, P. J„ and Lawrence and O’Brien, JJ.
    
      James A. Deering, for appellants. Wm. H. Clark, (Carroll Berry, of counsel, ) for the corporation.
   Van Brunt, P. J.

All the questions involved in this appeal except one have been disposed of in similar cases decided herewith. It appears that Stephen H. Thayer appeared before the commissioners, aqd filed objections to the report of the commissioners, which were subsequently overruled and the report signed; and, pending a motion for its confirmation, of which he had notice, died, and the appellants were appointed his executors. It is now urged that it was error that the report was confirmed without notice to the appellants, and without making them parties to the proceedings after the death of said Stephen H. Thayer. It appears that the original motion to confirm the report was made returnable on the 4th of January, 1889, and there is no claim but that Stephen H. Thayer had notice of this motion; and it further appears from the record by the order entered on the 2d of August, 1889, that this motion had been duly and regularly adjourned to this date, and that it was brought on for a hearing, and at the same time a motion that the proceedings be discontinued was also heard, and that upon this hearing no one appeared for Thayer, and the order was entered referring the question arising upon the discontinuance proceedings and postponing the further hearing of the motion to confirm the report until after the coming in of the report of the referee, the same to be brought up on two days’ notice to the attorneys (naming them) who had appeared for objectors, among whom said Stephen H. Thayer is not mentioned. It was subsequent to the making of this order that Stephen H. Thayer died. The motion to confirm the report of the commissioners was brought up upon notice to all the parties who were' mentioned in the order of August 2, 1889, and therefore seems to have been regular.

The order should be affirmed, with costs and disbursements. All concur.  