Morrell v. Brooklyn Borough Gas Co.

Kelly, J.:

I concur in the affirmance of the order granting injunction pendente lite but for reasons which are not entirely in accord with those expressed in the prevailing opinion. In view of the fact that the statutory rates fixed for defendant by the Legislature have been declared confiscatory and void, I think the power to fix a reasonable rate devolved upon the Public Service Commission after due hearing and investigation. I think this was the intention of the Legislature in such case. (People ex rel. Village of S. Glens Falls v. P. S. Comm., 225 N. Y. 216.) The consumers of gas were not left solely at the mercy of the defendant company. (Town of North Hempstead *7v. Pub. Serv. Corp., 193 App. Div. 224; Bronx Gas & Electric Co. v. Public Service Comm., 190 id. 13.) It is the expressed policy of the State that the charges made by these public utility corporations shall be subject to supervision. But there appears to be some confusion of opinion as to the effect of the decision of the Court of Appeals in People ex rel. Municipal Gas Co. v. P. S. Comm. (224 N. Y. 156), and it is also said that the judgment in the case tried before Judge Hughes determined that the Public Service Commission was without power to fix rates. (Public Service Comm. v. Brooklyn Borough Gas Co., 189 App. Div. 62, 72.) On the other hand, the gas company defendant in the case at bar made its application to the Public Service Commission for the rates complained of here by permission of the Appellate Division in the First Department. (Brooklyn Borough Gas Co. v. Public Serv. Comm., 190 App. Div. 901.) Out of this confused situation arises the controversy between the plaintiff and defendant here. I would doubt the correctness of the order appealed from were it not for the fact that the printed papers show that before the learned judge at Special Term the defendant gas company in the affidavit of its manager appeared to concede that the Public Service Commission had no authority to fix the rate, and in its points before this court there is a like concession. And the gas company appears to rely upon rates fixed entirely independently of the permission to do so granted by the Commission order. On July 20, 1920, defendant, on its own authority, promulgated, fixed, made and established a rate,” etc. I cannot agree that the defendant had such authority. In my opinion the situation presented in the papers requires the affirmance of the order granting the preliminary injunction so that the rights of the parties may be established by prompt trial.