McCarty v. Natural Carbonic Gas Co.

The order appealed from suspends for thirty days the provision in the judgment enjoining the defendant from burning soft coal'on its property for generating steam, such suspension being for the purpose of allowing the defendant to make the necessary changes in its plant in order to use hard coal for generating steam. The *258order was made after the judgment containing such injunction had been affirmed by this court and the Court of Appeals. (McCarty v. Natural Carbonic Gas Co., 114 App. Div. 908 ; S. C., 189 N. Y. 40.) It is now urged by the appellant that the Special Term was without jurisdiction to grant the order in question as its effect was to modify a judgment after its affirmance by the court of last resort.

The order was made July 19, 1907. It, in terms, suspended the injunction “ for thirty days from the date hereof.” Such suspension expired, therefore, on August 19, 1907, over a month before the argument of this appeal. There remains, therefore, only an abstract or academic question for determination. Nothing now stands in the way of the enforcement of the plaintiff’s judgment according to its terms. Ho practical result can be reached by deciding the question, and following the course usual in such cases we think we .should dismiss the appeal. (Fleischman v. Fleischman, 80 Hun, 90 ; Matter of Woodworth, 64 id. 522; People ex rel. Geer v. Common Council of Troy, 82 N. Y. 575 ; Matter of Manning, 139 id. 446.)

The appeal should be dismissed, without costs.

All concurred.

Appeal dismissed, without costs.