In re Palmer — 37 N.Y. St. Rep. 538

Majority

p. 538

In the Matter of the Petition of Courtlandt Palmer to Vacate Assessment.

(Supreme Court, General Term, First Department,

Filed March 13, 1891.)

Headnote

Abatement and revivor—Laches.

. A delay of eleven years in making application'for revival of a proceeding is sufficient to render it the duty of the court to refuse to permit the revival as a mere matter of discretion.

Motion for the reargument of an appeal.

P. A. Hargous, for motion ; G. L. Sterling, opposed.

The appeal for the rehearing of which this application has been made was decided by this court in March, 1887. Matter of Palmer, 43 Hun, 572 ; 7 N. Y. State Rep., 267.

An appeal from that decision was taken to the court of appeals, and the appeal dismissed. Matter of Palmer, 115 N. Y., 493 ; 26 N. Y. State Rep., 338.

And in the opinion leading to that result it has been intimated that this court might in its discretion revive the proceeding in .favor of the executors of this estate, which seems to be slightly in conflict, to say the least,-with what had previously been held upon this matter of practice.

The proceeding which it is the object of the executors to revive was commenced in December, 1873, and the testator paid the assessment in March, 1874, prior to the time when he sold and conveyed the property, probably thereby intending to abandon these proceedings. This probability is confirmed by the fact that no application was made to revive the proceeding until the latter part of December, 1885, the testator himself having died in May, 1874.

p. 539

A. period of more than eleven years, therefore, elapsed after he had paid the assessment before the application to revive in favor of his executors was made. And that delay would be clearly sufficient to render it the duty of the court to refuse to permit the revival as a mere matter of discretion. Lyon v. Park, 111 N. Y., 351 ; 19 N. Y. State Rep., 626.

It is not excused by reason of the indecision assigned. in support of the application, for it is the general practice of the courts in legal proceedings to require that they shall be expeditiously prosecuted and not permitted to remain dormant, as this proceeding was, for a long period of years.

A reargument of the appeal would, therefore, be of no service to the appellants, and the motion should be denied, with ten dollars costs. •

Van Brunt,- P. J., and Brady, J., concur.