
    In the Matter of the Petition of Courtlandt Palmer to Vacate an Assessment.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed, March 3, 1887.)
    
    1. Taxes and assessments—Proceeding to vacate—Special proceeding—Abatement op on death op party.
    Proceedings taken to vacate or reduce an assessment are special proceedings, and not being within the provisions of the law relating to the revival of actions, abate after the decease of the party prosecuting or defending it.
    
      2. Same—Payment op.
    The payment of an assessment before proceedings are taken to vacate or reduce it, is a legal answer to the application. Following Matter of Santiago Dima, 77 N. Y., 170.
    Appeal by the mayor, etc., from an order reviving the proceedings and reducing the assessment by deducting the sum of $3,714.27 therefrom.
    
      O. L. Sterling, for app’lt; P. A. Hargous, for resp’t.
   Daniels, J.

The proceeding was commenced by Courtlandt Palmer, in December, 1873. He conveyed away the property affected by the assessment in June and November of that year, and he himself died on the 10th of May, 1874. Letters testamentary were issued to his executors in June of that year, and they applied in December, 1885, for an order continuing the proceedings in their names as executors of the deceased testator. They paid the assessment on the 21st of March, 1874.

This was a special proceeding. Matter of Jetter, 78 N. Y., 601. And not being within the provisions of the law relating to the revival of actions after the decease of the party prosecuting or defending, it abated by the decease of the testator. People v. Oswego Court, etc., 2 Thompson & Cook, 731; Leavy v. Gardner, 63 N. Y., 624. And it consequently, under these authorities, could not be revived or continued in the names of the executors. But what they should have done, inasmuch as the payment or removal of the assessment was necessary to complete the title to the property which had been conveyed, was to have commenced a new proceeding to set it aside or reduce it in its amount before making payment of the assessment. By that payment they deprived themselves of even this right, for a payment of the assessment before proceedings are taken to vacate or reduce it has been held to be a legal answer to the application. Matter of Santiago Lima, 77 N. Y., 170.

The proceeding is not saved by what was decided in Pursell v. Mayor, etc. (85 N. Y., 330), for it had abated, and was necessarily thereby out of the court. If the executors had the authority to revive it, it would consequently, from its revival, be practically a new proceeding and capable of being legally answered by this fact of the payment of the assessment. Without, therefore, considering the effect of the long period of time intervening between the decease of the testator and the application for the revival of the proceeding, this order, under the authorities, seems to have been erroneously made, and it should be reversed and the motion denied, together with the usual costs and disbursements.

Van Brunt, P. J., and Bradley, J., concur.  