In the Matter of the Petition of Courtlandt Palmer to Vacate an Assessment for Sixty-sixth Street Outlet Sewer, etc., in the City of New York

In the Matter of the Petition of Courtlandt Palmer to Vacate an Assessment for Sixty-sixth Street Outlet Sewer, etc., in the City of New York. There is no statutory authority for continuing a pending undetermined special proceeding in the name of an administrator or executor of a deceased party; the provisions of the Code of Civil Procedure (§§ 755, 757), as to continuance upon the death of a party, relate only to actions. Even if the Supreme Court has the power to grant an order of revival in such a proceeding, as to which, quaere, it is not absolutely bound so to do, but the matter is one within its discretion, and a refusal on its part to grant the order is not reviewable here. It seems that laches is a sufficient ground for refusing such applications. People ex rel. Fairchild v. Commissioners, etc. (105 IT. Y. 674) distinguished. Beported below. 43 Hun, 572. (Argued June 31, 1889; decided October 8, 1889.) Appeal from order of the General Term of the Supreme Court in the first judicial department, made the first Monday of January, 1887, which reversed an order of the Special Term continuing the above proceeding in the name of the executors of the above petitioner. The nature of the proceeding and the facts are sufficiently stated in the opinion. P. A. Hargous for appellant. The petitioner having paid the assessment pending the proceedings to vacate the same, his legal representatives are entitled to a revival and continuance of the proceedings for the purpose of enforcing restitution. (Purcell v. Mayor, etc., 85 N. Y. 330, 333; Pitts v. Davison, 37 id. 235; 1 Barb. Pr. 677.) The executors are aggrieved by the assessment in question. If the petitioner had lived, there is no doubt about his light to continue these proceedings after payment. (In re Hughes, 93 N. Y. 512; Purcell v. Mayor, etc., 85 id. 333; In re Phillips, 60 id. 16.) Special proceedings will be revived and continued where irreparable injury would be done unless such a course is pursued. (People ex rel. v. Comrs., 105 N. Y. 674; People v. Robinson, 29 Barb. 77; Hartings v. McKinley, 8 How. Pr. 175.) Ho mere lapse of time will absolutely defeat an application for continuance of an action in the name of the representative of a deceased party. (Evans v. Cleveland, 72 N. Y. 486.) Laches do not apply in a case like this. (Halsman v. St. John, 90 N. Y. 465; Green v. Martine, 84 id. 648 ; In re Mehrbach, 97 id. 601.) David J. Dean for respondent. The executors of Courtlandt Palmer are not aggrieved by the assessment in question, and have, therefore, no right to revive and continue the proceeding. (In re Lima, 77 N. Y. 170 ; In re Hughes, 93 id. 512.) This proceeding abated on the death of the petitioner. (Code Civ. Pro. § 755 ; Hallahan v. Herbert, 57 N. Y. 409; In re Smith, 1 How. Pr. [N. S.] 64; In re Jetter, 78 N. Y. 601; In re M. S. Inst., 82 id. 142; People ex rel. Wicks v. Oswego, 2 T. & C. 431.) If it is held that under its general equity powers the court can grant relief, the laches of the executors should defeat this application. (In re M. S. Inst., 82 N. Y. 142; In re Stryker, 23 Hun, 647; Diefenthaler v. Mayor, etc., 111 N. Y. 331; Jex v. Mayor, etc., Id. 339; Coit v. Campbell, 82 id. 509; Mulready v. Hall, 2 M. L. B. 89; Newman v. Marvin, 12 Hun, 236.) This motion is analogous to an application for a writ of certiorari in respect to the effect of delay in demanding relief. (People ex rel. Waldman v. Bd. of Police, 82 N. Y. 506 ; People ex rel. v. Perry, 16 Hun, 461; People ex rel. v. Hill, 53 N. Y. 547; People ex rel. Stevens v. Bd. of Police, 24 Hun, 284.) [MAJORITY — Earl, J.] Earl, J. Some time prior to 1873 an assessment had been laid upon land of' the petitioner in the city of Hew York for the expenses of a sewer. In June and Hovember of that year he conveyed the land and was thus entirely divested of any interest therein. On the thirty-first day of December thereafter he made application to the Supreme Court by petition under the act, chapter 338 of the Laws of 1858, and the acts amendatory thereof, to have the assessment vacated. On the 21st day of March, 1874, while his application was pending, he paid the assessment in full, and on the tenth day of May thereafter he died, leaving a will in which he devised his real estate to his executors in trust; and letters testamentary were issued to his executors on the second day of June. In December, 1885, the executors made a motion to have the proceed-' ings continued in their name. That motion was granted by an order made at the Special Term. The city of ¡New York appealed from that order to the General Term, where the order was reversed, and then this appeal was brought to this court. At common law when a sole party to a legal action died, before trial, the action abated and there was no way to revive or continue it. (Evans v. Cleveland, 72 N. Y. 486) '; and the right to revive and continue such actions in the names of the administrators or executors of a deceased party always depended upon statutes. The provisions of the Code upon the subject relate only to actions. (Code, §§ 755, 757); and. there is no statutory provision for continuing a pending, undetermined special proceeding in the name of an administrator or executor of a deceased party. There is, therefore, no statutory right to the order which the executors ask in this matter, and even if the Supreme Court had the power to grant it, it was not absolutely bound to grant it. Even if the motion had been promptly made after the death of Palmer, it would, at least, have rested in the discretion of the court to determine whether, in view of all the circumstances, it would grant it, or leave the executors to file a new petition. The substitution and continuance were not matters of right. Such was the old chancery practice before there were any statutes regulating the practice. When a sole party to a suit in chancery died, and it became necessary to make an application to the court to continue the suit in the name of his administrator or executor, it was always in the discretion of the court to grant or refuse the application. (Evans v. Cleveland, supra.) This court has no power to revive a special proceeding pending in the Supreme Court, or to direct that court to revive it in the name of the executors. The case of the People ex rel. Fairchild v. Commissioners, etc. (105 N. Y. 674) is not adverse to these views. That case had been determined in the Supreme Court and the party died after the appeal to this' court. There was an adjudication of costs against the party which his administratrix was bound to pay, and this court having jurisdiction of the matter by the appeal, in the exercise of its discretion, made an order substituting the administratrix of the deceased party here. It could even have refused that in the exercise of its discretion. Still further, the application for the substitution of the executors and the continuance of the proceeding was not' made until more than eleven years after the executors became qualified to act,- and laches has always been a ground for refusing such applications. (Lyon v. Park, 111 N. Y. 350.) Whether the delay was sufficiently and satisfactorily explained was for the determination of the Supreme Court. The appeal should, therefore, be dismissed, with costs. All concur. Appeal dismissed.