In the main I do not disagree with Mr. Justice Laughlin as to the principles of law stated in his opinion, but I do not agree with him as to their application to the question here presented.
The defendant has, and on the twenty-fifth of May last when it presented its bill to the plaintiff had, nearly 400,000 consumers of gas in the city of Mew York, to whom it was its custom to render bills every month. In pursuance of this custom it rendered a bill to the plaintiff on the twenty-fifth of May for.gas furnished to him between the first and nineteenth of that month, charging him at the rate of one dollar for every 1,000 cubic feet of gas consumed, which amounted to twenty-three dollars and twenty cents. He refused to pay the bill upon the ground that the defendant, under chapter 125 of the Laws of 1906 of the State of Mew York, could only charge him eighty cents per 1,000 cubic feet of gas consumed, which amounted to eighteen dollars and fifty-six cents, which sum he offered to pay and defendant refused to accept. Defendant then sought to enforce collection by threatening to cut off the further supply of gas. (Trans. Corp. Law [Laws of 1890, chap. 566], § 68.) Thereupon the plaintiff brought this action to procure a judgment restraining the defendant from cutting off his supply of gas and from interfering with or removing from his premises the gas meter or other appliances for the supply of gas upon the ground that it could only x legally charge him, under the act above referred to, eighty cents for each 1,000 cubic feet. Upon the summdns and complaint the plaintiff obtained a temporary injunction, pending the return of an order to show cause why the same should not be continued during the continuance of the action, restraining the defendant from cutting' off or in any way interfering with the plaintiff’s supply of gas. Upon the return of this order defendant presented proof, which was not contradicted, which tended to establish that eighty cents *237per 1,000 cubic feet was not a reasonable price, for which reason the act of the Legislature requiring it to furnish gas at such price amounted to a confiscation of its property, and, therefore, is unconstitutional, and that it had, prior to the commencement of this action, filed a bill in the Circuit Court of the United States for the purpose of testing the validity of such act. The court refused to continue the injunction and the plaintiff has appealed.
This order is about to he reversed and the injunction granted, notwithstanding numerous decisions of this court to the effect that the granting of an in j unction pendente lite rests in the discretion of the Special Term, whose order will not he reversed unless the discretion has been abused (City of Gloversville v. J., G. & K. H. R. R. Co., 49 N. Y. St. Repr. 315 ; Pratt v. N. Y. C. & H. R. R. R. Co., 90 Hun, 83), and that a preliminary injunction is not granted “ except in very clear eases ” (McLoughlin v. Singer, 33 App. Div. 185); also that it will always be refused if to grant it will do greater damage to defendant than to plaintiff to refuse it (People v. Canal Board, 55 N. Y. 390; Morgan v. City of Binghamton, 102 id. 500; Brower v. Williams, 44 App. Div. 337; St. Regis Paper Co. v. Santa Clara Co., 55 id. 225); and where serious injury would be done defendant and only slight relief afforded plaintiff. (Riedeman v. Mount Morris Electric Light Co., 56 App. Div. 23.) The discretion exercised by the Special Term in refusing to continue the injunction cannot, in view of our own decisions, when the facts are considered, be said to have been abused.
The defendant, as already indicated, has nearly 400,000 different consumers of gas, and when chapter 125 of the Laws of 1906 became a law (which prohibited it from charging more than eighty cents for each 1,000 cubic feet of gas furnished, and imposed a penalty of $1,000 for each and every violation of the act), it was confronted with a very serious situation. If, as it contends, this was less than the cost, or such charge did not afford an adequate return on the capital invested in its business, then the act in effect amounted to a confiscation of its property in a manner prohibited by subdivision 1 of section 10 of article 1 of the Federal Constitution and section 1 of the 14th amendment thereof; and yet, if it undertook to collect a sum in excess of the amount specified in the statute, by monthly bills — the method theretofore employed by it—it would incur *238monthly penalties of nearly §400,000,000, and, before any final determination could be obtained in the Supreme Court of the United States, render it a bankrupt.
Taking into consideration the situation which w'as presented and the tremendous consequences which would follow if it treated the act. of 1906 of the Legislature of the State as invalid, it did, as it seems to me, the only reasonable and proper thing to do — brought a suit in the United States Circuit Court for the purpose of determining the validity of such act. It had a right to file its bill in that court for the purpose of having the validity of the act of the Legislature determined. (Chicago, etc., R. Co. v. Minnesota, 134 U. S. 418.) That court, as indicated in the opinion of Judge Lacombe in Consolidated Gas Co. v. Mayer (146 Fed. Rep. 150), which was referred to in the opinion of Mr. Justice Laugheix, was the “ appropriate forum,” because through a suit brought there a final and ultimate decision could be determined by the United States Supreme Court quicker than in any other way. It is important that the question should be finally settled by the court of last resort, and from the judgment or decree rendered in the Circuit Court an appeal can be taken direct to the Supreme Court of the United States, whereas in this action an appeal must he taken from the judgment rendered therein first to the Appellate Division of the Supreme Court of the State of Mew York, then to our Court of Appeals, and from its determination to the Supreme Court of the United States, and obviously a •determination could not he reached in this way as speedily as it could in the other. In the bill filed in the Federal court appropriate facts are set out which will raise every question which can be determined in this action. In that shit an order has been entered which permits the gas company to “ make the same charge for gas furnished since April 30,1906, to its consumers, other than the defendant, the City of Mew York, as that which it has heretofore made, namely, $1 per thousand cubic feet,” notwithstanding the provisions of chapter 125 of the Laws of 1906, but a provision is inserted in it to the effect that as condition of the gas company’s charging this rate it must forthwith pay to a bank designated a sum estimated to represent twenty cents per 1,000 cubic feet for all gas furnished during the month of May, 1906, such estimated sum to be twenty per cent of the amount received for the gas furnished by defendant to its *239consumers during the month of May, 1905, and that thereafter it must pay in the manner provided in the order twenty per cent of its receipts for gas furnished to its customers. The defendant lias complied with the order in so far as it directed it to forthwith pay into court a sum estimated to represent twenty cents per 1,000 cubic feet for all gas furnished for the month of May, 1906, by actually paying to the bank designated $201,531.53. The order directing this payment was made on the eighteenth of May and it was complied with prior to the twenty-fifth of May, the day when the bill of which complaint is made was presented to the plaintiff in this action. There had then actually been deposited in court for his benefit a sum which if the act in question were declared void would insure to him a return of the amount which he claimed he was not liable to pay. Under such circumstances I do not think it can be said that the court abused its discretion in refusing to grant a temporary-injunction.
On the merits the injunction ought not to be granted. As indicated, every question which can be determined in this action will necessarily have to be determined in the suit brought in the Federal court. It is a general rule of comity that where two courts have concurrent jurisdiction the one first acquiring the same shall retain it to the exclusion of the other. (Peck v. Jenness, 7 How. [U. S.] 612; Johnstown Mining Co. v. Butte & Boston Co., 60 App. Div. 344.) The Federal court acquired jurisdiction by the tiling of the bill. (Heidritter v. Elizabeth Oil Cloth Co., 112 U. S. 294.) The decision there made, if ultimately affirmed by the Supreme Court of the United States, will be binding upon the courts of this State, and, therefore, will determine the rights of this plaintiff.
It is true our Supreme Court has jurisdiction of the parties and the subject-matter of the action. It is equally true that the judgment or decree in the Federal court will not be res adjudicata as to this plaintiff. But these are insufficient reasons, under the facts here presented, to justify our court in exercising its jurisdiction. It ought to refuse to entertain jurisdiction on the ground of comity and to prevent multiplicity of actions—to say nothing of the little benefit which will be conferred upon the plaintiff and the great loss which the defendant may sustain by our so doing. It ought also to refuse to entertain jurisdiction on the ground that by so *240doing, and granting the injunction, it will, in effect, destroy the very object sought to be accomplished by the order made by Judge Lacombe in the suit brought in the Federal court.
It is a somewhat alarming proposition that when a legislative body has, simply by its own fiat, arbitrarily fixed the price at which the owner of a product must sell it, a court will refuse to the owner of the product the right to sell it at the price at which he had theretofore sold it pending a judicial determination as to the validity of the legislative act, when sufficient money is - paid into court to reimburse a purchaser for the difference in price in case the act is declared invalid.
I, therefore, vote to affirm the order appealed from (1) on the ground that the court did not abuse its discretion iii refusing to continue it, and (2) on the ground that the Federal court having taken jurisdiction of the entire subject-matter of the litigation, our courts ought to refuse to entertain jurisdiction, at least to the extent of granting an injunction during the pendency of an action.