115 N.Y. 493 | NY | 1889
Some time prior to 1873 an assessment had been laid upon land of the petitioner in the city of New York for the expenses of a sewer. In June and November of that year he conveyed the land and was thus entirely divested of any *495 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 proceedings 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,
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,
The appeal should, therefore, be dismissed, with costs.
All concur.
Appeal dismissed.