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In re the Application for the Issuance of a Subpœna Duces Tecum to Strauss

157 N.Y. 720 Court N.Y. Decision date 1899-01-10 English

Delivered by Bartlett, J.

Contents

Majority

p. 720
In the Matter of the Application for the Issuance of a Subpœna Duces Tecum to Frederick Strauss, Respondent, to Testify. Clarence H. Venner, Appellant.

Headnote

Matter of Strauss, 30 App. Div. 610 , appeal dismissed.
(Argued January 9, 1899;
decided January 10, 1899.)
Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 17, 1898, reversing' an order of Special Term issuing a subpoena.duces tecum commanding the respondent to appear before a commissioner named in a commission issued out of the District Court of Arapahoe county, state of Colorado, and to produce certain documents mentioned in the subpoena.
Subsequently, by an order made November 21, 1898, the Colorado court vacated and set aside the commission.
The motion was made upon the grounds that the order is not appealable under section 190, Code of Civil Procedure, and that the questions presented by the appeal are now' of no practical importance.
David Mc'Clure, Edwin C. Hoyt and Frederick B. Van Vorst for motion.
John W. Hutchinson, Jr., opposed.

We are of opinion that the order of the District Court of Arapahoe county, Colorado, of November 21st, 1898, revoking, vacating and setting aside the dedimus potestatem, or commission of March 26tli, 1898, has rendered the questions presented by this appeal purely abstract, and consequently of such a character as will not be considered by this court. It follows that the motion to dismiss the appeal should be granted.

The usual question of costs below is not presented in this case by appellants, as respondent offers to enter into a stipulation waiving costs heretofore obtained against the appellants, and allowing the judgment for costs to be marked satisfied of record.

p. 721
Motion to dismiss appeal is granted, without costs to either party as against the other, upon the execution of a stipulation by respondent in accordance with this memorandum.

All concur.

Appeal dismissed.

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