301 N.Y. 219 | NY | 1950
These proceedings were commenced by petitioners against the Board of the Black River Regulating District, (hereinafter called Board) to prohibit it from carrying out its proposed plan to take land to construct a reservoir and dam on
The Board recognizes that it is the fixed and settled practice of this court not to decide questions which have become abstract because of a change in circumstances affecting the case after the decision below. (Delavan v. New York, N. H. & H. R. R. Co., 216 N. Y. 359, 362; Matter of Lyon Co. v. Morris, 261 N. Y. 497; Matter of Buffalo Cr. R. R. Co. v. City of Buffalo, 301 N. Y. 595.) It seeks, however, to bring the case within the exception to that rule of practice under which this court on occasion decides questions which, even though moot as between the parties, affect the entire State or transactions of a similar character which are numerous and which are likely to arise with frequency. (Matter of Lyon Co. v. Morris, supra; Matter of Rosenbluth v. Finkelstein,
In the course of its argument before us, the Board suggested that the Stokes Act should be declared unconstitutional. Whether or not the Board has standing to question the constitutional power of its principal to cut down or otherwise restrict its authority or sphere of action as agent (cf. Barings v. Dabney, 86 U. S. 1; Cranford Co. v. City of New York, 38 F. 2d 52, 54-55; Sweeny v. State of New York, 251 N. Y. 417), is a problem which we postpone for later consideration since it is not now before us.
Since dismissal of the appeal would leave in effect the decision of the Appellate Division as a precedent and since we have not passed upon the merits of that decision, the proper practice here is to reverse the order of the Appellate Division and to remit the proceedings to Special Term with directions-to dismiss the petitions, not on the merits, but solely upon the ground that the issues are moot. (Wilmerding v. O’Dwyer, 297 N. Y. 664.)
The orders should be reversed, without costs and the proceedings remitted to Special Term, with directions to dismiss the petitions solely upon the ground that the issues are moot.
Loughran, Ch. J., Lewis, Desmond, Dye, Fuld and Froessel, JJ., concur.
Orders reversed, etc.