298 N.Y. 103 | NY | 1948
Petitioner Rochester Gas and Electric Corporation applied to the Public Service Commission (1) for an order, pursuant to section
In this proceeding under article 78 of the Civil Practice Act, the Appellate Division has, by a divided court, held those conditions invalid, annulled the determinations of the commission, and remitted the matter to that agency "for further consideration." The commission has taken an appeal as of right to this court. We have denied a motion heretofore made to dismiss the appeal, with leave to renew upon the argument; the matter is now before us upon renewal of the motion.
Neither the order nor the opinion of the Appellate Division specifies the scope of the "further consideration" to be accorded by the commission, or the nature of the further proceedings to be taken by it. We assume that the order appealed from would be final if the decision of the Appellate Division left the commission no alternative but to grant petitioner the requested authorization and approval without the challenged conditions — at least to the extent of permitting petitioner to receive competitive bids for the purchase of the proposed new securities. (Cf. Matter of Colonial Liquor Distributors, Inc., v.O'Connell,
The appeal should be dismissed, with costs, without prejudice, however, to the right of the commission to move in the Appellate Division for a resettlement of that court's order to specify the nature of the "further consideration" to be accorded, or of the further proceedings to be taken, upon the directed remission to the commission.
LOUGHRAN, Ch. J., LEWIS, DESMOND, THACHER, DYE and FULD, JJ., concur; CONWAY, J., taking no part.
Appeal dismissed, etc.