In re Striker

New York Supreme Court

In re Striker

30 N.Y. Sup. Ct. 647

DecidedJanuary 15, 1881

StatusPublished

This text of 30 N.Y. Sup. Ct. 647 (In re Striker) 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 Striker, 30 N.Y. Sup. Ct. 647 (N.Y. Super. Ct. 1881).

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Opinion

Barrett, J.:

The petitioners’ application was barred by the statute of limitar tions. The assessments sought to be vacated were confirmed between the years 1861 and 1869, inclusive. The Court of Appeals has held, In the Matter of the Manhattan Savings Institution (MSS. opinion, Sept., 1880), that these are special proceedings, and are governed as to limitation by the provision of the Code of Civil Procedure. Section 338 of this Code provides that “an action, the limitation of which is not specially prescribed in this or the last title, must be commenced within ten years after the cause of action [648]*648accrues.” Section 414 (in the same chapter) provides that tbe word “ action,” contained in this chapter, “ is to be construed, when it is necessary to do so, as i/ncludimg a special proceeding, or any proceeding therein or in an action.” Over ten years having elapsed since the confirmation of these assessments; it is clear that the petitioner is barred of his relief herein. It is said that this objection should have been taken below. For aught that appears it was so taken. But no pleadings are required in these summary proceedings, and the statute was not a matter to be proved. Even if the statute were not applicable to a case where the assessment was confirmed prior to its passage, the present application was properly denied upon the ground of laches, which here were gross.

The order was right and should be afiirmed, with ten dollars costs and the disbursements of the appeal.

Davis, P. <L, and Brady, J., concurred

Order affirmed, with ten dollars costs and disbursements.

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Barrett, J.:

The petitioners’ application was barred by the statute of limitar tions. The assessments sought to be vacated were confirmed between the years 1861 and 1869, inclusive. The Court of Appeals has held, In the Matter of the Manhattan Savings Institution (MSS. opinion, Sept., 1880), that these are special proceedings, and are governed as to limitation by the provision of the Code of Civil Procedure. Section 338 of this Code provides that “an action, the limitation of which is not specially prescribed in this or the last title, must be commenced within ten years after the cause of action [648]*648accrues.” Section 414 (in the same chapter) provides that tbe word “ action,” contained in this chapter, “ is to be construed, when it is necessary to do so, as i/ncludimg a special proceeding, or any proceeding therein or in an action.” Over ten years having elapsed since the confirmation of these assessments; it is clear that the petitioner is barred of his relief herein. It is said that this objection should have been taken below. For aught that appears it was so taken. But no pleadings are required in these summary proceedings, and the statute was not a matter to be proved. Even if the statute were not applicable to a case where the assessment was confirmed prior to its passage, the present application was properly denied upon the ground of laches, which here were gross.

The order was right and should be afiirmed, with ten dollars costs and the disbursements of the appeal.

Davis, P. <L, and Brady, J., concurred

Order affirmed, with ten dollars costs and disbursements.

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Bluebook (online)

30 N.Y. Sup. Ct. 647, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-striker-nysupct-1881.