(dissenting). I am unable to agree with the proposed decision that the determination of the Public Service Commission in this proceeding should be annulled. The consolidated company received property which cost the constituent companies about $8,200,000 and issued therefore securities of approximately $14,200,000. The paper profits from this write-up were divided between the participants in the transaction. By *213a mere change in corporate entities through a consolidation the value of property devoted to a public use was increased in substantially the amount indicated. The transaction itself, and the dominant position of the Rochester Gas & Electric Company, indicates that there was no bargaining at arm’s length.
I vote to affirm.
Lawbence, J., concurs with Bbewstee, J.; Hill, P. J., concurs in a separate memorandum; Fostee, J., dissents in a memorandum in which Heffeeetan, J., concurs.
Determinations and order of October 21, 1943, annulled, vacated and set aside, on the law and facts, with $50 costs and disbursements, without prejudice to the continuance of other proceedings under respondents’ order of June 30, 1938, in case No. 9552 not inconsistent with the opinion, [gee post, p. 760.]