In re Fitzpatrick — 25 N.Y. St. Rep. 628

Majority

p. 628

In the Matter of the Petition of William Fitzpatrick to Vacate Assessment for Sewer in Seventy-second street, Confirmed April, 1871.

(Supreme Court, General Term, First Department,

Filed July 9, 1889.)

Headnote

Abatement and revival—When action not revived.

A motion to revive a proceeding to vacate an assessment in the name of the administratrix of a deceased petitioner made upwards of eleven years after the death of the petitioner, should be denied.

Appeal from an order denying an application to revive the proceedings by making the administratrix of the petioner a party to it In his behalf.

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

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 eleven 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 in the Case of Marshall O. Roberts (24 N. Y. State Rep., 993), the order should be affirmed, without costs.

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