In re Opening Lexington Avenue — 44 N.Y. St. Rep. 588

Majority

p. 588

In the Matter of Opening Lexington Avenue. In re S. H. Thayer.

(Supreme Court, General Term, First Department,

Filed February 18, 1892.)

Headnote

Eminent domain—Confirmation—Death of property owner.

Where a property owner dies after receiving notice of motion to confirm the report of the commissioners and failure to appear at the hearing-which was adjourned, his executors are not entitled to notice or to he-made parties to the proceedings.

Appeal from order of the special term denying motion made on behalf of the executors of Thayer, deceased, to vacate order-confirming report of commissioners of estimate and assessment or that said report be re-committed for correction.

J. A. Beering, for app’lts; G. Berry, for resp’t.

All the questions involved in this appeal, except one, have been disposed of in similar cases . decided, herewith.

It appears that Stephen H. Thayer appeared before the commissioners and filed objections to the report of the commissioners-which were subsequently overruled and the report signed, and, pending a motion for its confirmation, of which he had notice, died, and the appellants were appointed his executors.

It is now urged that it was error that the report was confirmed without notice to the appellants and without making them parties-to the proceedings after the death of said Stephen H. Thayer.

It appears that the original motion to confirm the report was-made returnable on the 4th of January, 1889, and. there is no-claim but that Stephen H. Thayerffiad notice of this motion, and it further appears from the record by the order entered on the 2nd of August, 1889, that this motion had been duly and regularly adjourned to this date, and that it was brought on for a hearing and at the same time a motion that the proceedings be discontinued was also heard, and that upon this hearing no one-appeared for Thayer and the order was entered referring the question arising upon the discontinuance proceedings and postponing:

p. 589

the further hearing of the motion to confirm the report until after the coming in of the report of the referee, the same to be brought, up on two days notice to the attorneys (naming them) who had appeared for objectors, among whom said Stephen H. Thayer is not mentioned. It was subsequent to the making of this order that Stephen H. Thayer died. ■ The motion to confirm the report of the commissioners was brought up upon notice to all the parties who were mentioned in the order of August 2, 1889, and therefore seems to have been regular.

The order should be affirmed, with ten dollars costs and disbursements.

O’Brien and Lawrence, JJ., concur.