In re Wendell — 27 N.Y. St. Rep. 526

Majority

p. 526

In the Matter of the Petition of John D. Wendell to Vacate Assessment.

(Supreme Court, General Term, First Department,

Filed July 9, 1889.)

Headnote

Abatement and revivor—Laches.

Petitioner died in 1876 and no motion for revival was made until 1888, Feld, that the delay was sufficient to justify a denial of the application to revive.

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 appl’t; 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, the order should be affirmed, with ten dollars costs and also the-disbursements.

Van Brunt, P. J., and Beady, J., concur.