Majority
p. 378In the Matter of the Estate of Ferdinand Hirsch, Deceased. Edward K. Jones, as Executor and Testamentary Trustee under the Will of Ferdinand Hirsch, Deceased, Appellant; Minnie F. Hirsch and Others, Respondents. (No. 2.)[1] First Department, December 21, 1906.
Headnote
Appeal by Edward X. J ones, as executor, etc., from an order of - the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 23d day of February, 1905, continuing an injunction restraining the appellant from acting as. executor and trustee pending an application for the revocation- of his létters testamentary.Edward W. Hatch and David MaClure, for the appellant.
Lemuel E. Quigg, for the respondents.
This appeal was taken before the final order was entered revoking the letters testamentary and removing the appellant as trustee. As we have concluded to affirm the decree of the surrogate revoking the letters testamentary (Matter of Hirsch, No. 1, 116 App. Div. 367 ) this appeal becomes unimportant.
The respondents move to dismiss the appeal on the ground that after the appeal was taken buj; before it came on for argument the surrogate had revoked the letters and consequently no question was
p. 379
presented on this appeal. In view of the other determination this motion should he granted as the injunction was merely provisional pending the final decree to'determine whether the letters should be revoked and the appellant removed as trustee; there is, therefore, no substantial question presented to the court for determination.
It follows that the appeal should be dismissed, without costs.
Patterson, P. J., McLaughlin, Clarke and Houghton, JJ., concurred.
Appeal dismissed, without costs. Order filed.