143 N.Y.S. 716 | N.Y. Sup. Ct. | 1913
On or about the 10th day of September, 1908, the plaintiff brought an action against the defendant for the purpose of compelling the latter to supply illuminating gas for the public uses of the plaintiff at a reasonable price, and to restrain the defendant from discontinuing the supply of gas during the pendency of the action. A temporary injunction was granted on the said tenth day of September. Subsequently the defendant moved tp set aside such temporary order of injunction. This motion resulted in
Since the above action was commenced the defendant, as appears by the moving affidavit, has made repeated efforts to induce the plaintiff to join in an effort to determine the proper price to be paid for the gas used by the city of Buffalo, but without avail, and that after an amendment of the Public Service Commissions Law, giving the defendant the right to file a complaint against the city of Buffalo, the defendant instituted a proceeding against the plaintiff for the purpose of arriving at a proper price for its product, and this proceeding was tried before the public service commission, resulting in an order, bearing date of February 5, 1913, by which it was found that the just and reasonable maximum price to be charged by the Buffalo Gas Company for gas to be furnished to the city of Buffalo is the sum of ninety cents per 1,000 cubic feet. This order appears to have been served upon the city of Buffalo on the 5th day of April, 1913,
On the 15th day of September, 1913, more than five months after the service of the order of the public service commission upon the city of Buffalo, the plaintiff in this action filed a petition with the public service commission asking for a rehearing, and demanding a copy of the opinion of said commission in determining the proceeding, which, of course, constituted no part of the determination, unless specially made a part thereof, and on the 24th day of September, 1913, the said commission made an order denying a rehearing, and a few days later furnished a copy of its opinion on the original determination to the corporation counsel of the city of Buffalo. It is now urged on the part of the city of Buffalo that it is its present intention to review the order of the public service commission by a writ of certiorari, and this appears to be the principal ground upon which it opposes the present motion to vacate the injunction orders granted in 1908, and under the provisions of which it is contracting to supply gas to the Welsbach Street Lighting Company, and refusing to pay to the defendant the price which has been established by the public service commission. It becomes important, therefore, to consider whether there is still an opportunity to review the order of the public service commission.
Section 2125 of the Code of Civil Procedure provides that subject to the provisions of section 2126 (which has no relation to the matter now before us) “ a writ of certiorari to review a determination must be granted and served within four calendar months after the determination to be reviewed becomes final and binding
Taking this view of the question there does not appear to be any very good reason why the defendant should be compelled to continue furnishing gas' to the plaintiff at an arbitrarily determined price, where a competent tribunal has fixed the rates at an advance of twenty cents per 1,000 feet and the plaintiff has taken no steps to review that determination. However, it would be in the nature of a public calamity to have the gas service discontinued during the time that it may be necessary to adjust to the present situation, and we have reached the conclusion that, the motion should be granted to take effect in thirty days from a service of notice upon the plaintiff of the entry of the order, unless the plaintiff shall-in the meantime consent to a trial of the action before a referee, or to an' adjustment of the controversy between the parties.
Motion granted, with ten dollars costs; order to be settled by the court as above indicated.
Motion granted, with ten dollars costs.