This proceeding was commenced the last of December, 1873, to vacate an assessment for a sewer in Seventh avenue, confirmed in May, 1871. The petitioner died in the summer of 1879, and no further proceedings appear to have been taken in his behalf' than the service of the petition. By his decease leaving it in this condition, the proceeding abated, and the delay which has since intervened in making this application, supplied a substantial ground for the denial of the motion.
For that, and the other reason assigned in the case' of Marshall O. Roberts the order should be affirmed, but as these several proceedings were argued as one, the costs already directed to be paid will be sufficient for the indemnity of the city. The order should be affirmed, without costs.
Van Brust, Ch. J., and Brady, J., concur.