| N.Y. Sup. Ct. | Mar 10, 1939
It is conceded that plaintiff is entitled to judgment on the pleadings. The sole question involved is whether there should be an award of attorney’s fees and an extra allowance of costs.
The action was commenced by plaintiff “ on behalf of himself and all other similarly situated consumers of gas supplied by the Brooklyn Union Gas Company.” In accordance with the opinion of the Court of Appeals in this case (reported in 279 N.Y. 304" court="NY" date_filed="1938-12-09" href="https://app.midpage.ai/document/kovarsky-v-brooklyn-union-gas-co-3580184?utm_source=webapp" opinion_id="3580184">279 N. Y. 304), plaintiff, on his own behalf and in bis representative capacity, is entitled to a declaratory judgment to the effect that the reconnection charge provided for in the schedule of rates and regulations for gas service, filed by defendant with the Public Service Commission, is contrary to and violative of the provisions of the Public Service Law, and an injunction perpetually enjoining and restraining defendant from billing or collecting any such reconnection charge.
Plaintiff’s attorney contends that inasmuch as this is a class action he is entitled to equitable compensation out of the share of each class member taking the benefit of the class judgment. There is no merit in this contention. It does not appear from the
There remains for consideration plaintiff’s claim for an additional allowance of costs pursuant to sections 1513 and 1514 of the Civil Practice Act. Section 1513 provides that “ in a difficult and extraordinary case, where a defense has been interposed in an action, the court, in its discretion, also may award to any party a further sum, as follows: * * * 2. In any action or special proceeding, except in a special proceeding by certiorari to review an assessment under article thirteen of the Tax Law, where a defense has been interposed, or in an action for the partition of real property, a sum not exceeding five per centum upon the sum recovered or claimed, or the value of the subject matter involved.” Section 1514 limits the amount thus awarded to $2,000.
To bring himself within the purview of the foregoing sections plaintiff asserts that the subject-matter involved consists of the right of the class to receive back the moneys heretofore collected as reconnection charges, and, secondly, that it encompasses the right to make this charge in the future. In the case at bar the Court of Appeals has decided that plaintiff is not entitled to an accounting, and, as pointed out above, the judgment to be entered herein will not award any money damages or relief by way of refunds. Further, no consumer can claim any such refund in this action. Obviously, the subject-matter involved cannot be the right of the class to receive refunds.
Plaintiff’s other claim that the subject-matter involved encompasses the right to make the reconnection charge in the future is likewise without merit. A valuation of the right of the defendant to make the charge in the future is speculative in that it cannot be estimated or predicted how many consumers would in the future request the defendant to temporarily discontinue the supply of gas. Even admitting that this action was “ difficult and extraordinary ” within the meaning of section 1513 of the Civil Practice Act, plaintiff’s alleged valuation of the subject-matter involved, as alluded to above, is speculative and incidental and within the principle laid
Plaintiff’s motion is denied and defendant’s cross-motion for an order dismissing plaintiff’s alleged cause of action for an accounting and directing judgment in the form annexed to defendant’s affidavit is granted.