In re Weber — 24 N.Y. St. Rep. 990

Majority

p. 990

In the Matter of the Petition of Albert Weber to Vacate the Assessment for a Sewer in Seventh avenue, Confirmed May 14, 1871.

(Supreme Court, General Term, First Department,

Filed July 9, 1889.)

Headnote

Abatement and revival—Taxes and assessment—Proceeding to vacate—When not revived.

Where after proceedings commenced to vacate an assessment for a sewer the petitioner died, and no further proceedings were taken in his behalf for nearly ten years, Held, that a motion to revive the proceeding in favor of the trustee of the petitioner’s estate should he denied.

Appeal from an order denying a motion to revive the proceeding by making the trustee of the estate a party to it for future prosecution.

P. A. Hargous, for app’lt; G-. L. Sterling, for resp’t.

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 Marshall O. Boberts 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. Van Brunt, Ch. J., and Brady, J. concur.