In re Weber — 3 Silv. Sup. 319

Majority

p. 319

In the Matter of the Petition of Albert Weber to Vacate the Assessment for a Sewer in Seventh Avenue.

Supreme Court, First Department, General Term,

July 9, 1889.

Headnote

1. Abatement and revival.—A delay of nearly ten years, where in proceedings to vacate an assessment the petitioner, died and no step was taken other than the service of the petition, supplies a substantial ground of the denial for the motion to revive the proceeding.

2. Same.—The proceeding entirely abated by the death of the testator.

Appeal from an order denying a motion to revive the proceeding by making the trustee of the estate a party thereto.

P. A. Hargous, for appellant.

G. L. Sterling, for respondent.

This proceeding was commenced the last of December, 1873, to vacate an assessment for a sewer in Seventh avenue, confirmed in May, 1871. The petitioner died in the summer of 1879, and no further proceedings appear to have been taken in his behalf' than the service of the petition. By his decease leaving it in this condition, the proceeding abated, and the delay which has since intervened in making this application, supplied a substantial ground for the denial of the motion.

For that, and the other reason assigned in the case' of Marshall O. Roberts the order should be affirmed, but as these several proceedings were argued as one, the costs already directed to be paid will be sufficient for the indemnity of the city. The order should be affirmed, without costs.

Van Brust, Ch. J., and Brady, J., concur.