102 Misc. 266 | N.Y. Sup. Ct. | 1918
The respondent is a company engaged in the business of distributing natural gas to consumers in the city of Buffalo under a franchise from the city to a predecessor company, which contains the following clause: ‘ ‘ The company will furnish natural gas to all consumers on the line of the streets, avenues, alleys, lanes and public squares in which the pipes are laid as long as said pipes shall be in use for the purpose of supplying natural gas.”
The relator is the owner of a lot on Eaglewood avenue in the city of Buffalo, through which street and in front of which lot the Natural Gras Company has a pipe or main. On this lot the relator has built a dwell
It further appears that the relator planned the house in question and constructed it with the necessary appliances for the use of natural gas; that there is no manu
The respondent is engaged in a business of a public character and its obligation to serve all equally within its power and to make connections, in the absence of any restraining order, rests upon a common law duty, on the contract obligation of its franchise and on the statutory duty • imposed by section 65 of the Public Service Commissions Law. Of course, the law does not require the impossible and if gas cannot be obtained a company like the respondent is excused from supplying it. The public service commission has undoubted right to make regulations for the supply of gas but a restriction or classification which is unreason
In view of the circumstances stated above in respect to the absence of manufactured gas and the deficient coal supply, and considering also the short duration of the periods of shortage and the fact that the house was built after an application was made for the connection to which the premises were entitled under the franchise, the order of the public service commission, so far as it relates to this relator in respect to the house in question, is., in my opinion, unreasonable and arbitrary and therefore void.
It is not necessary, therefore, to decide the interesting questions which were argued as to whether a company.must make connections and furnish gas to all new consumers upon the lines of pipe even in the face of a failing supply and a general shortage, although support for such contention may be found in People ex rel. Wood v. Consumers Gas Trust Co., 157 Ind. 345; 55 L. R. A. 245, nor whether, if such duty ordinarily exists, the public service commission may absolve a distributor of natural gas from such obligation.
As the city of Buffalo or the public service commission, or both, may desire to review the order in this case, an application may be made by them, or either of them, to be made parties to this proceeding. Motion for a writ of peremptory mandamus is therefore granted.
Motion granted.