
    
      In re Roberts. In re Wendell. In re Weber. In re Fitzpatrick. In re Schloman.
    
      (Supreme Court, General Term, First Department.
    
    July 9, 1889.)
    1. Revival of Actions—When Denied—Laches.
    A motion to revive a proceeding in the name of the executors of the will or the trustees of the estate of a deceased petitioner 14 years after filing the petition, which was to vacate a street assessment, and 7 years after the death of the petitioner, no excuse being alleged for the delay in the prosecution of the proceeding by the petitioner, or in the making of the application by his executors or trustees, is properly denied.
    2. Abatement—Special Proceedings.
    A petition to vacate a street assessment is a special proceeding, and abates with the death of the petitioner.
    Appeals from special term, New York county.
    The petitions of Marshall O. Roberts, John D. Wendell, Albert Weber, William Fitzpatrick, and Frederick Schloman, to vacate street assessments.
    Argued before Van Brunt, P. J., and Brady and Daniels, JJ.
    P. A. Hargous, for appellants. G. L. Sterling, for respondents.
   ROBERTS’ PETITION.

Daniels, J.

The petition of the testator to vacate the assessment was made in the early part of the year 1872, but no active proceeding appears to have been afterwards taken for its prosecution. On or about the 11th September, 1880, the petitioner departed this life, leaving a last will, whereby lie appointed the applicants the executors of his estate. They qualified as such in the month of October, 1880, and no action whatever was taken afterwards to revive the proceeding, until the latter part of February, 1888, when a notice of motion to revive was given. This delay both in the prosecution of the proceeding by the testator himself, and in the making of the application on the part of his executors, has been wholly unexcused; and it is sufficient, under the rules applied to proceedings in courts of justice, to make it the duty of the court to deny the application, as that was done by the order from which the appeal has been brought.' Beyond that, this was a special proceeding, and under the rule which was applied in Leavy v. Gardner, 63 N. Y. 624, it entirely abated with the decease of the testator. And that view was taken of a similar proceeding by this court in the case of In re Palmer, decided in March, 1887, and reported in 43 Hun. 572. The case of People v. Commissioners, 105 N. Y. 674, 12 N. E. Rep. 179, has been brought to the attention of the court as substantially overruling these preceding authorities. But no intimation was given in the opinion that that was intended or understood to be the effect of the decision, and the facts upon which it¿was made were very substantially different from those now presented to the court; for the proceeding, which was by certiorari, had matured into a judgment. It had been heard and finally determined by the court, and for that reason did not and could not abate by the death of the relator; while in the present instance all that was done was to present the petition, and when the petitioner died, then, under the authority of these preceding cases, the proceeding abated. The court, therefore, was right in denying the application made to revive the proceeding, and the order should be affirmed, with $10 costs, and also the disbursements. All concur.

WENDELL’S PETITION.

Daniels, J.

This proceeding was commenced by petition in January, 1872, and the petitioner died in December, 1876. Proof was taken in it by the examination of a son of the petitioner as a witness in 1885, but no revival of the proceeding had then taken place. The first step for the revival of the proceeding was the service of a notice of motion in February, 1888, and no excuse whatever has been given for this long delay of upwards of 10 years on the part of the applicants, and that was sufficient to justify the court in ttie order which was made denying the application. For that, and the additional reason given in the case of In re Roberts, supra, the order should be affirmed, with $10 costs, and also the disbursements.' All concur.

WEBER’S PETITION.

Daniels, J.

This proceeding was commenced the last of December, 1873, to vacate an assessment for a sewer in Seventh avenue, confirmed in May, 1871. The petitioner died in the summer of 1879, and no further proceedings appear to have been taken in his behalf than the service of the petition. By his decease leaving it in this condition, the proceeding abated, and the delay which has since intervened in making this application supplied a substantial ground for the denial of the motion. For that, and the other reason assigned in the case of In re Roberts, supra, the order should- be affirmed; but, as these several proceedings were argued as one, the costs already directed to be paid will be sufficient for the indemnity of the city. The order should be affirmed, without costs. All concur.

Fitzpatrick’s petition.

Daniels, J.

This proceeding was commenced in the early part of the year 1872 to vacate an assessment made and confirmed in 1871. The intestate died in October, 1876, and the proceeding remained in the condition already mentioned until February, 1888, a period of upwards of 11 years, when notice of this application was served. This delay was altogether too great to" permit the application to succeed. Diligence in these as well as other legal proceedings is required to be observed in behalf of the application, and where that is not done its omission will supply a sufficient reason for the denial of an application of this character. Even if the time should be limited to the period intervening since the letters of administration were issued, which was in April, 1882, it is still so great as to require the affirmance of the order. For these reasons, and that additionally given in the case of In re Roberts, supra, the order should be affirmed, without costs. All concur.

SOHLOMAN’S PETITION.

Daniels, J.

This proceeding was commenced in December, 1873, and it has been allowed to remain in the condition in which it was placed by the service of the petition since then until the present time. The petitioner himself died in June, 1875, and in the following month letters testamentary were issued upon his estate to his executors, who made no application whatever to revive op continue the proceeding until the service of their notice of motion in the latter part of February, 1888. For the reasons which have been given in the other cases already considered (supra) this was sufficient to justify the order made by the court, and it should be affirmed, without costs. All concur.  