In re Wendell — 25 N.Y. St. Rep. 628

Majority

p. 628

In the Matter of the Petition of John D. Wendell, to Vacate an Assessment for the Sewer in Seventh Avenue, Confirmed May 4, 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 for a sewer, in

p. 629

the name of the executor of a deceased petitioner, made more than ten years after the death of the petitioner, no excuse being given for the delay, should be denied.

Appeal from an order denying a motion to revive the proceeding by substituting the executors of the petitioner in his place and stead.

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

This proceeding was commenced by petition in January, 1872, and the petitioner died in December, 1876. Proof was taken in it by the examination of a son of the petitioner, as a witness, in 1885, but no revival of the proceeding had then taken place.

The first step for the revival of the proceeding was the . service of a notice of motion in February, 1888, and no excuse whatever has been given for this long delay of upwards of ten years, on the part of the applicants, and that was sufficient to justify the court in the order which was made denying the application.

For that, and the additional reason given in the Case of Marshall O. Roberts (24 N. Y. State Rep., 993), the order should be affirmed, with ten dollars costs and also the disbursements.

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