In re Palmer , 7 N.Y. St. Rep. 267 ( 1887 )

Daniels, J.:

The proceeding was commenced by Courtland Palmer, in December, 1873. He conveyed away the property affected by the assessment in June and November of that year, and he himself died on the 10th of May, 1874. Letters testamentary were issued to his executors in June of that year, and they applied in December, 1885, for an order continuing the proceedings in their names as executors of the deceased testator. The assessment was paid on the 21st of March, 1874. And was a special proceeding. (Matter of Jetter, 78 N. Y., 601.) And not being within the provisions of the law relating to the revival of actions after the decease of the party prosecuting or defending, it abated by the decease of the testator. (People ex rel. Wicks v. Oswego County Court, etc., 2 T. & C., 431; Leavy v. Gardner, 63 N. Y., 624.) And it consequently, under these authorities, could not be revived, or continued in the names of the executors. But what they should have done, inasmuch as the payrnen t or removal of the assessment was necessary to complete the title to the property which had been conveyed, was to have commenced a new proceeding to set it aside, or reduce it in its amount, before making payment of the assessment. By that payment they deprived themselves of even this right, for a payment of the assessment-before proceedings are taken to vacate, or reduce it, has been held to be a legal answer to the application. (Matter of Santiago, Lima, 77 N. Y., 170.)

The proceeding is not saved by what was decided in Purssell v. Mayor, etc. (85 N. Y., 330), for it had abated, and was necessarily thereby out of the court. If the executors had the authority to revive it, it would consequently, from its revival, be practically a new proceeding, and capable of being legally answered by this fact of the payment of the assessment. Without, therefore, considering the effect of the long period of time intervening between the decease of the testator and the application for the revival of the proceeding, this order, under the authorities, seem to have been erroneously made, and it should be reversed and the motion denied, together with the usual costs and disbursements.

Yan Brunt, P. J., and Brady, J., concurred.

Order reversed and motion denied, with ten dollars costs and disbursements.