In re Barney

New York Supreme Court

In re Barney

6 N.Y.S. 401, 60 N.Y. Sup. Ct. 480, 24 N.Y. St. Rep. 752, 53 Hun 480, 1889 N.Y. Misc. LEXIS 601

DecidedJuly 9, 1889

StatusPublished

This text of 6 N.Y.S. 401 (In re Barney) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Barney, 6 N.Y.S. 401, 60 N.Y. Sup. Ct. 480, 24 N.Y. St. Rep. 752, 53 Hun 480, 1889 N.Y. Misc. LEXIS 601 (N.Y. Super. Ct. 1889).

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Opinion

Bartlett, J.

These proceedings to vacate and set aside assessments were-instituted at various times in 1872, 1873, and 1874. In 1887 orders were made at special term upon testimony previously taken, reducing or vacating the assessments. These orders proved ineffectual, because the several petitioners were dead at the time when the orders were granted. Thereupon the executors or administrators of the petitioners moved to revive the proceedings, and to be substituted, but their motions were denied, and from the'orders denying their applications they have appealed to the general term. In Re Palmer, 43 Hun, 572, (decided by this court in March, 1887.) it was held that a proceeding to vacate an assessment, being a special proceeding, abated by the death of the petitioner, and could not be revived or continued in the name of his executors. This decision was based on the authority of People v. Oswego Court of Sessions, 2 Thomp. & C., 431, and Leavy v. Gardner, 63 N. Y. 624. Since it was rendered, however, the court of appeals has held that the power exists to revive certiorari proceedings to review the removal of a person from office, and that his personal representative may be substituted in place of the deceased relator. People v. Commissioners, 105 N. Y. 674, 12 N. E. Rep. 179. Upon the authority of that decision, the appellants insist that a special proceeding to vacate an assessment may be revived in like-manner. But the revival in that case was after judgment, pending an appeal. And, furthermore, it would seem .that there is statutory authority for reviving a certiorari proceeding, in section 2133 of the Code of Civil Procedure, which provides that, after a writ of certiorari has been issued, any proceeding may be taken in the cause, as a similar proceeding may be taken in an action. There is nothing in the case cited which indicates an intention to overrule the decisions to which we have referred, to the effect that an ordinary special proceeding cannot be revived. In accordance with those authorities, these applications were properly denied, and the orders denying them should be affirmed, with costs. All concur.

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Bartlett, J.

These proceedings to vacate and set aside assessments were-instituted at various times in 1872, 1873, and 1874. In 1887 orders were made at special term upon testimony previously taken, reducing or vacating the assessments. These orders proved ineffectual, because the several petitioners were dead at the time when the orders were granted. Thereupon the executors or administrators of the petitioners moved to revive the proceedings, and to be substituted, but their motions were denied, and from the'orders denying their applications they have appealed to the general term. In Re Palmer, 43 Hun, 572, (decided by this court in March, 1887.) it was held that a proceeding to vacate an assessment, being a special proceeding, abated by the death of the petitioner, and could not be revived or continued in the name of his executors. This decision was based on the authority of People v. Oswego Court of Sessions, 2 Thomp. & C., 431, and Leavy v. Gardner, 63 N. Y. 624. Since it was rendered, however, the court of appeals has held that the power exists to revive certiorari proceedings to review the removal of a person from office, and that his personal representative may be substituted in place of the deceased relator. People v. Commissioners, 105 N. Y. 674, 12 N. E. Rep. 179. Upon the authority of that decision, the appellants insist that a special proceeding to vacate an assessment may be revived in like-manner. But the revival in that case was after judgment, pending an appeal. And, furthermore, it would seem .that there is statutory authority for reviving a certiorari proceeding, in section 2133 of the Code of Civil Procedure, which provides that, after a writ of certiorari has been issued, any proceeding may be taken in the cause, as a similar proceeding may be taken in an action. There is nothing in the case cited which indicates an intention to overrule the decisions to which we have referred, to the effect that an ordinary special proceeding cannot be revived. In accordance with those authorities, these applications were properly denied, and the orders denying them should be affirmed, with costs. All concur.

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6 N.Y.S. 401, 60 N.Y. Sup. Ct. 480, 24 N.Y. St. Rep. 752, 53 Hun 480, 1889 N.Y. Misc. LEXIS 601, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-barney-nysupct-1889.

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