p. 114Commercial Union Assur. Co., Limited, v. Smith et al.(Supreme Court, General Term, First Department.Headnote
Appeal—Dismissal—Abandonment op Controversy.In an action to enjoin defendants from using a corporate name similar to plaintiff's, the complaint was dismissed at the trial on the merits, with costs. Reid that, where it appeared on appeal, from the arguments of counsel, that defendants had abandoned "the use of the name in question, it was unnecessary to inquire whether plaintiff had made out a case for an injunction at the trial, and the appeal should be dismissed. Barrett, J., dissenting.
Appeal from special term, New York county.
Action by the Commercial Union Assurance Company, Limited, against Morris H. Smith, the Commercial Union Life Insurance Company, and others, for an injunction to restrain defendants from using the name “Commercial Union” in their life insurance company to be organized. From a judgment dismissing the complaint on the merits, with costs, plaintiff appeals. For former report, see 2 N. Y. Supp. 296 .
Argued before Van Brunt, P. J., and Barrett and Bartlett, JJ.Butler, Stillman & Hubbard, (John Notman and William Allen Butler, of counsel,) for appellant. Johnes & Willcox, (Robert G. Ingersoll and Henry C. Willcox, of counsel,) for respondents.
I think we ought to dismiss this appeal. There is no longer any real controversy between the parties. The purpose of the action was to prevent the defendants from using the name or title of “Commercial Union” as the designation of a life insurance company to be organized to do
p. 115business in the state of New York. The plaintiff failed in the court below. Nevertheless, as appears from the statements of counsel made in the course of their arguments before us, the defendants have concluded to abandon, and have abandoned, the use of the name which the plaintiff sought to enjoin them from using. An injunction having become needless to protect the plaintiff, it is unnecessary to inquire whether the plaintiff made out a case for an injunction upon the trial. Appellate courts may properly refuse to pass upon abstract questions, where no actual relief is really sought.
People v.
Common Council, 82 N. Y. 575 ;
Grow v.
Garlock, 29 Hun, 598 . Appeal dismissed, without costs.
Van Brunt, P. J., concurs.
(dissenting.) The question presented is not, in my judgment, an abstract one. It involves a genuine issue, none the less so because we are told by the counsel that since the judgment the defendants have abandoned the use of the name sought to be enjoined. The defendants may resume their original position to-morrow, and the plaintiff will be barred by the judgment appealed from. And, further, the complaint was dismissed below upon the merits, with costs. By our refusal to consider the appeal, the plaintiff will have to pay these costs. I think it is our duty to decide the case, and I am therefore constrained to dissent from the dismissal of the appeal.