#### In the Matter of the Petition of Marshall O. Roberts to vacate the Assessment for Eighty-first Street Sewer, etc., Confirmed April 27, 1871.

*(Supreme Court, General Term, First Department,*

*Filed July 9, 1889.)*

1. Abatement and revival—Taxes and assessments—Proceedings to vacate—When not revived.

Where proceedings to vacate an assessment were instituted in 1873, but no active proceedings were taken subsequently thereto for their prosecu*994tian and the petitioner dies, and no action was taken hy his executors to revive the proceedings until 1888, *Held,*that the application to revive the proceedings should be denied.

2. Same—When proceeding abates.

*Held,*that as the proceeding was a special proceeding, it entirely abated by the decease of the testator.

Appeal from an order denying a motion to revive the proceeding in the name of the executors of the deceased petitioner.

*P. A. Hargous,*for app’lt; *G. L. Sterling,*for resp’t.

Daniels, J.

The petition of the testator to vacate the assessment was made in the early part of the year 1872, but no active proceeding appears to have been afterwards taken for its prosecution. On or about the 11th of September, 1880, the petitioner departed this life, leaving a last will whereby he appointed the applicants the executors of his-estate. They qualified as such in the month of October, 1880, and no action whatever was taken afterwards to revive the proceeding, until the latter part of February, 1888,. when a motion to revive was given.

This delay, both in the prosecution of the proceeding by the testator himself, and in the making of the application on the part of his executors has been wholly unexcused'; and it is sufficient, under the rules applied to proceedings in courts of justice, to make it the duty of the court to deny the application, as that was done by the order from which the appeal has been brought.

Beyond that this was a special proceeding, and under the rule which was applied in *Leavy*v. *Gardner*(63 N. Y., 624), it entirely abated with the decease of the testator. And that view was taken of a similar proceeding by this court in the *Case of Courtlandt Palmer,*decided in March, 1887, and reported in 43 Hun, 572.

The case of *The People*v. *Dept. of Fire, etc.*(105 N. Y., 674), has been brought to the attention of the court as substantially overruling these preceding authorities. But no-intimation was given in the opinion that that was intended or understood to be the effect of the decision, and the facts upon which it was made were very substantially different from those now presented to the court. For the proceeding which was by *certiorari*had matured into a judgment. It, had been heard and finally determined by the court, and, for that reason, did not and could not abate by the death of the relator, while, in the present instance, all that was done was to present the petition, and when the petitioner died, then, under the authority of these preceding cases, the proceeding abated.

The court, therefore, was right in denying the application made to revive the proceeding, and the order should be affirmed, with ten dollars costs, and also the disbursements.

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