Morrell v. . Brooklyn Borough Gas Co. No. 2, 132 N.E. 130

Morrell v. . Brooklyn Borough Gas Co. No. 2

132 N.E. 130 | NY | 1921

The nature of this action is stated in Morrell v. BrooklynBorough Gas Company, No. 1. The plaintiff, as a resident of the thirty-first ward of the borough of Brooklyn, New York city, seeks to enjoin the defendant from collecting for gas the rate fixed by the public service commission. No contract with the city of New York is involved; it is solely a question of the price which a private consumer must pay. Under section 452 of the Code of Civil Procedure the city of New York has been permitted to intervene as a party plaintiff. That section provides that where a person, not a party to the action, has an interest in the subject thereof the court must direct him to be brought in on his *408 application. The interest, referred to, is a property interest or some duty or right devolving upon or belonging to the party to be brought in.

Here the city of New York has no such interest in the cost of plaintiff's gas. The defendant's franchise comes from the state. The legislature has either fixed the rate to be charged consumers or else has left the matter to the public service commission. The city of New York is given no power over rates. It is a state matter; part of the police power which the state has continually exercised. It would be different if the decision of this case involved or affected a contract with the city to furnish gas to it or any of its departments.

We cannot see how the rights, property or duties of the city are in any way involved. A particular rule of law may affect a large number of citizens and yet give the city no such interest as permits it to intervene. Questions might arise which so affected the welfare or rights of all the inhabitants of the city as to justify the court in permitting the municipality being made a party to the proceeding, but this is not such a case. Matterof Quinby v. Public Service Commission (223 N.Y. 244) andMatter of International Ry. Co. v. Rann (224 N.Y. 83, 89) are not in point as the questions touched upon the municipality's right to fix permanent rates in franchises. But here the rate involved does not affect the city as a consumer, touches no rate established by the city, and no power has been vested in the city to control or interfere with gas charges. Consequently the city has no interest entitling it to intervene. The same conclusion has been reached by the United States court in Consolidated GasCo. v. Newton (256 Fed. Rep. 238; affirmed, 260 Fed. Rep. 1022; remanded for dismissal, 253 U.S. 219).

Chapter 247 of the Laws of 1913, known as the "Home Rule Law," creates no such interest as is meant by section 452 of the Code of Civil Procedure. The words *409 of the chapter are general enough for municipal purposes but not sufficiently specific to empower the regulation of gas rates.

The order appealed from must be reversed, with costs in all courts, and motion for leave to intervene denied, with ten dollars costs, and the questions certified answered in the negative.

HISCOCK, Ch. J., HOGAN, CARDOZO and ANDREWS, JJ., concur; POUND, J., absent; CHASE, J., deceased.

Order reversed, etc.