In re Palmer — 26 N.Y. St. Rep. 338

Majority

p. 338

In the Matter of the Petition of Courtland Palmer to Vacate an Assessment.^[1]

(Court of Appeals,

Filed October 8, 1889.)

Headnote

1. Abatement and revivor — Appeal—Does not lie to court oe appeals FROM ORDER REFUSING A CONTINUANCE IN SPECIAL PROCEEDING.

There is no statutory provision for continuing a pending, undetermined special proceeding in the name of the personal representatives of a deceased party. Even if the supreme court has power to grant it, it is a matter of discretion, and an order of general term reversing such order is not appealable.

2. Same — Laches.

A delay in making the application for more than eleven years after the executors have qualified, constitutes such loches as will justify a refusal.

People ex rel. Fairchild v. Commissioners, 105 N. Y., 674 ; 8 JST. Y. State Rep., 179, distinguished.

Appeal from order of general term, first department, reversing an order of special term granting motion for continuance of the proceeding in the name of the executors and reducing assessment.

P. A. Hargous, for app’lts; D. J. Dean, for resp’t.

Some time prior to 1873, an assessment had been laid upon land of the petitioner in the city of New York for the expenses of a sewer. In June and November of that year he conveyed the land, and was thus entirely divested of any interest therein. On the 31st day of December thereafter, he made application to the supreme court, by petition, under the act, chapter 338 of the Laws of 1858, and the acts amendatory thereof, to have the assessment vacated. On the 21st day of March, 1874, while his

p. 339

application was pending, he paid the assessment in full, and on the 10th day of May thereafter he died, leaving a will in which he devised his real estate to his executors, in trust, and letters testamentary were issued to his executors on the second day of June. In December, 1885, the executors made a motion to have the proceedings continued in their name. That motion was granted by an order made at the ° special term. The city of New York appealed from that order to the general term, where the order was reversed, and then this appeal was brought to this court.

At common law where a sole party to a legal action died before trial the action abated, and there was no way to revive or continue it, Evans v. Cleveland, 72 N. Y., 486 ; and the right to revive and continue such actions in the names of the administrators or executors of a deceased party always depended upon statutes. The provisions of the Code upon the subject relate only to actions, Code, §§ 755, 757; and there is no statutory provision for continuing a pending, undetermined special proceeding in the name of an administrator or executor of a deceased party. There is therefore no statutory right to the order which the executors ask in this matter, and even if the supreme court had the power to grant it, it was not absolutely bound to grant it. Even if the motion had been promptly made after the death of Palmer, it would at least have rested in the discretion of the court to determine whether in view of all the circumstances it would grant it, or leave the executors to file a new petition. The substitution and continuance were not matters of right Such was the old chancery practice before there were any statutes regulating the practice. When a sole party to a suit in chancery died, and it became necessary to make an application to the court to continue the suit in the name of his administrator or executor, it was always in the discretion of the court to grant or refuse the application. Evans v. Cleveland, supra. This court has no power to revive a special proceeding pending in the supreme court, or to direct that court to revive it in the name of the executors. The case of the People ex rel. Fairchild v. The Commissioners, etc., 105 N. Y., 674 ; 8 N. Y. State Rep., 179, .is not adverse tó these views. That case had been determined in the supreme court, and the party died after the appeal to this court There was an adjudication of costs against the party which his administrator was bound to pay, and this court having jurisdiction of the matter by the appeal, in the exercise of its discretion, made an order substituting the administratrix of the deceased party here. It could even have refused that in the exercise of its discretion.

Still further, the application for the substitution of the executors and the continuance of the proceeding was not made until more than eleven years after the executors became qualified to act, and loches has always been a ground for refusing such applications. Lyon v. Park, 111 N. Y., 350 ; 19 N. Y. State Rep., 626. Whether the delay was sufficiently and satisfactorily explained was for the determination of the supreme court.

The appeal should therefore be dismissed, with costs.

All concur.