
    In the Matter of the Petition of JAMES A. and AMBROSE K. STRIKER, to Vacate Sundry Assessments for Sewers.
    
      Statute of limitations— a/n application to vacate am, assessment must he made within ten yews.
    
    An application to vacate an assessment in the city of New York is a special proceeding, and is barred by tbe statute of limitations, unless made within ten years from tbe confirmation thereof.
    Appeal from an order made at Special Term, denying a motion to vacate certain assessments.
    
      Ectwin E. Van Auken, for the petitioners, appellants.
    E. E. Lacomhe, for the City of New York, respondent.
   Barrett, J.:

The petitioners’ application was barred by the statute of limitar tions. The assessments sought to be vacated were confirmed between the years 1861 and 1869, inclusive. The Court of Appeals has held, In the Matter of the Manhattan Savings Institution (MSS. opinion, Sept., 1880), that these are special proceedings, and are governed as to limitation by the provision of the Code of Civil Procedure. Section 338 of this Code provides that “an action, the limitation of which is not specially prescribed in this or the last title, must be commenced within ten years after the cause of action accrues.” Section 414 (in the same chapter) provides that tbe word “ action,” contained in this chapter, “ is to be construed, when it is necessary to do so, as i/ncludimg a special proceeding, or any proceeding therein or in an action.” Over ten years having elapsed since the confirmation of these assessments; it is clear that the petitioner is barred of his relief herein. It is said that this objection should have been taken below. For aught that appears it was so taken. But no pleadings are required in these summary proceedings, and the statute was not a matter to be proved. Even if the statute were not applicable to a case where the assessment was confirmed prior to its passage, the present application was properly denied upon the ground of laches, which here were gross.

The order was right and should be afiirmed, with ten dollars costs and the disbursements of the appeal.

Davis, P. <L, and Brady, J., concurred

Order affirmed, with ten dollars costs and disbursements.  