Milbank v. Jones

The order appealed from was properly made, and would have been affirmed on the merits but for the motion made to dismiss the appeal, which must be granted. It appears that since said order was made the action has been tried and a verdict rendered in favor of the substituted plaintiff. The judgment entered thereon has been affirmed by the general term, and an appeal from such affirmance is now pending in the court of appeals. The order appealed from is now merged in and superseded by the judgment. As a decision on the merits can have no retrospective effect, the appeal should be dismissed. Grunberg v. Blumenlahl, 66 How. Pr., 62; Health Department v. O' Reilly, 49 N. Y. Superior Ct., 524; Fieldhouse v. Neville, 16 W. Dig., 472.

Courts will not decide mere abstract questions from the determination of which no practical result can follow. People v. Common Council, 82 N. Y., 575. The motion to dismiss the appeal must, therefore, be granted, with- costs.

Gildersleeve, J., concurs.