In re Barney — 24 N.Y. St. Rep. 752

Majority

p. 752

In the Matter of the Petition of Ashbel H. Barney to Vacate an Assessment. In the Matter of a Like Petition of Mary E. Brooks. In the Matter of a Like Petition of Anne Mahoney. In the Matter of a Like Petition of Max Weil (Seventy-ninth and Eighty-eighth Street Sewer.)

(Supreme Court, General Term, First Department,

Filed July 9, 1889.)

Headnote

1. Abatement and revival—Taxes and assessments—Proceeding to-VACATE ASSESSMENT, WHEN ABATES.

A proceeding to vacate an assessment, being a special proceeding, abates by the death of the petitioner, and cannot be revived or continued in the name of his executors.

2. Same—Code Civ. Pro., § 2133—Construction.

The statutory remedy for reviving a certiorarri proceeding given in Code-Civil Procedure, § 2133, has no application to a proceeding of the present character.

Appeals in behalf of the respective executors and administrators of the above named petitioners from special term orders, denying motions to revive the proceedings.

Charles É. Miller, for app’lts; George L. Sterling, for the-Mayor, etc., of New York, resp’ts.

These proceeding to vacate and set aside assessments, were instituted at various times in 1872, 1873 and 1874. In 1887, orders were made at special term upon testimony previously taken, reducing or vacating the assessments. These orders proved ineffectual because the several petitioners were dead at the time when the orders were granted. Thereupon the executors or administrators of the petitioners moved to revive the proceedings, and to be substituted, but their motions were denied, and from the orders denying their applications they have appealed to the general term.

In the Matter of Courtlandt Palmer, decided by this court in March, 1887, it was held that a proceeding to vacate an assessment, being a special proceeding, abated by the death of the petitioner, and could not be revived or continued in the name of his executors. This decision was based on the authority of The People ex rel. Wicks v. Oswego Court of Sessions ( 2 Thomp. & Cook, 431 ), and Leavy v. Gardner ( 63 N. Y., 624 ). Since it was rendered, however, the court of appeals, has held that the power exists to revive certiorari proceedings to review the removal of a* person from office, and that his personal representative may be substituted in place of the deceased relator. People ex rel. Fairchild v. Commissioners, 105 N. Y., 674 ; 8 N. Y. State Rep., 179.

Upon the authority of that decision, the appellants insist that a special proceeding to vacate an assessment, may be revived in like manner. But the revival in that case was after judgment, pending an appeal, and furthermore it would seem that there is statutory authority for reviving a certiorari proceeding, in section 2133 of the Code of Civil Procedure, which provides that after a writ of certiorari has been issued, any proceeding may be taken in the cause, as a similar proceeding may be taken in an action.

There is nothing in the case cited which indicates an intention to overrule the decisions to which we have referred to the effect that an ordinary special proceeding cannot be revived. In accordance with those authorities, these applications were properly denied, and the orders denying them should be affirmed with costs.

Van Brunt, Oh. J., and Macomber, J., concur.