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Susquehanna Steamship Co. v. A. O. Andersen & Co.

208 A.D. 786 Court Second Department, Docket Appeal No. 2 English

Delivered by Kelly, P. J.:

Contents

Majority

p. 786
Second Department,
February, 1924.
Susquehanna Steamship Company, Inc., Respondent, v. A. O. Andersen & Company, Inc., Appellant. (Action No. 4
Appeal No. 2.)

Headnote

Appeal —■ academia question — appeal from order denying motion to dismiss complaint on ground of former action pending —•former action was discontinued before trial of this action and costs paid before argument of appeal —■ question of former action pending is academic —• appeal dismissed.
Motion by the plaintiff to dismiss an appeal by defendant from an order of the Supreme Court, made at the Nassau Special Term and entered in the Nassau county clerk’s office July 1, 1922, as amended by an order entered July 28, 1922, denying a motion to dismiss the complaint because of the pendency of a prior action between the parties in New York county. The motion to dismiss said appeal was made upon the ground that the questions involved are academic.

The questions involved in this appeal and the motion to dismiss have been discussed in the opinion filed upon the affirmance of the,

p. 787
judgment. (See Susquehanna Steamship Co., Inc., v. Andersen & Co., Inc., Action No. 4, Appeal No. 1, ante, p. 26.) It appears that prior to the trial of the action in the case at bar, the action in New York county had been discontinued, and the learned trial justice so decided. The only matter pending was the adjustment of the costs, allowances and damages which plaintiff was directed to pay under the orders made in New York county in the First Department. (Susquehanna Steamship Co., Inc., v. Andersen & Co., Inc., 200 App. Div. 902 .) Upon the main appeal in this action we have affirmed the judgment entered upon the verdict directed by the court upon the trial. It appears that prior to the argument of the appeal the defendant, appellant, was paid by plaintiff and accepted the sum of $6,000 in full settlement of the costs, allowances and damages arising from a preliminary injunction order in the New York county action. Under the circumstances we think that the appeal from the order denying the motion to dismiss this action because of the pendency of the suit in New York county presents questions which are entirely academic. We, therefore, grant the plaintiff’s motion to dismiss the appeal, with ten dollars costs and disbursements. Jaycox, Manning, Young and Kapper, JJ., concur. Plaintiff’s motion to dismiss appeal granted, with ten dollars costs and disbursements.