In re Marshall — 7 N.Y.S. 861

Majority

p. 861

In re Marshall. In re Ferris.

(Supreme Court, General Term, First Department.

December 2, 1889.)

Headnote

Abatement of Actions—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.

Appeals from orders denying motions for revivals of the proceedings under the petitions of Jesse A. Marshall, deceased, and Francis Ferris, deceased, to vacate street assessments.

Argued before Van Brunt, P. J„ and Bartlett and Barrett, JJ.

T. F. Neville, for appellants. G. L. Sterling, for respondent.

The denial of this motion seems to have been fully jus_ tified by the principles laid down in Re Roberts, 6 N. Y. Supp. 195 , (decided by this court on the 9th of July, 1889,) where it was held that this was a special proceeding, and that, under the rule applied in Leavy v. Gardner, 63 N. Y. 624 , it was entirely abated by the decease of the petitioner. The order should be affirmed, with $10 costs and disbursements. All concur.