It appearing to the Court, upon affidavit of defendant, which is not contradicted, that since the dissolution of the restraining order in this case by his Honor. Judge Guión, and pending this appeal, the tree described in the pleading has been cut down by the city authorities of New Bern, and that there is nothing now to enjoin, and this being an action for injunctive relief only, it is ordered that the action be. dismissed without prejudice to any rights the plaintiff may have to commence another action for damages, -is so desired.

Action Dismissed.