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People ex rel. Safford v. Washburn

227 N.Y. 585 Court N.Y. Decision date 1919-10-14 English

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p. 585
The People of the State of New York ex rel. Mabel L. Safford, as Committee of the Person and Property of Edgar R. Bolles, an Incompetent Person, Appellant, v. Edward A. Washburn, Surrogate for the County of Genesee, et al., Respondents.

Headnote

People ex rel. Safford v. Washburn, 188 App. Div. 951 , appeal dismissed.
(Argued October 2, 1919;
decided October 14, 1919.)
Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 24, 1919, which affirmed an order of Special Term denying a motion for a writ of prohibition.
E. Jean Nelson Penfield for appellant.
Bayard J. Stedman, Frank S. Wood and Henry H. Wittstein for respondents.

In December, 1918, the appellant applied to the Supreme Court for a writ of prohibition to restrain the hearing and determination by the surrogate of Genesee county of a proceeding for the judicial settlement of the accounts of testamentary trustees. The ground of the application was that jurisdiction was withdrawn from the surrogate by section 2641 of the

p. 586
Code of Civil Procedure. The Supreme Court, at Special Term, denied the writ, and the Appellate Division affirmed the order.

Upon the argument in this court, the appellant’s counsel conceded that the surrogate had determined the proceeding, that he had entered a decree, and that his term of office had expired.

In such circumstances, the writ of prohibition would be ineffectual if issued. The question has become an abstract one by force of lapse of time and changed events. The court will, therefore, decline to proceed to a determination of the merits (Delavan v. N. Y., N. H. & H. R. R. Co., 216 N. Y. 359 ; Mills v. Green, 159 U. S. 651 ; Jones v. Montague, 194 U. S. 147 ).

The appeal should be dismissed, without costs to either party.

Hiscock, Ch. J., Chase, Cardozo, Pound, McLaughlin and Andrews, JJ., concur; Hogan, J., absent.

Appeal dismissed.

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