104 Misc. 337 | N.Y. Sup. Ct. | 1918
This is an application for an injunction, pendente lite, restraining the defendant from demanding or collecting more than fifteen cents per kilowatt hour for electrical lighting current furnished by the defendant to private consumers in Long Beach, Nassau county, N. Y., and for other relief.
At the threshold of the controversy there is presented a question which, as I view it, is determinative of the rights of the parties to this action, or at least which is controlling in so far as the right of the plaintiffs to injunctive relief pending the action and until the trial is concerned. Were it not for the fact presently to be stated I should be disposed to agree with the contention of the learned counsel for the defendant in point five of his able and exhaustive brief that the defendant, being a public service corporation and subject to the jurisdiction of the public- service commission, any consumer aggrieved by its schedule rates established as provided by the Public Service Commissions Law has an adequate remedy under that statute, which should be exhausted before application to a court
“ XIII. The cost to any and all consumers of electric current except as hereinabove provided shall not -be in excess of fifteen cents (15c.) per kilowatt hour. Consumers where meters are not installed shall be classified upon some reasonable and sufficient basis of classification, or in accordance with the amount and kind of service appliances installed, and the charges for electric current to consumers in each of such classes shall be uniform. The Power Company shall have the right, however, to charge an annual minimum rate of twelve Dollars ($12.00) to any and all consumers. The Power Company shall have the right as a prerequisite to the installation of service to demand a deposit by a consumer of a reasonable sum as an evidence of good
Thereafter the Estates of Long Beach sold numerous lots or plots of land shown upon the map, reserving in every case an easement for the benefit of the defendant as mentioned in the agreement; and under the terms of the said agreement and in pursuance of the easement so granted the defendant has entered upon and made use of its easements over the lands shown upon the map above referred to.
Under this state of facts I am of the opinion that the defendant cannot increase the rate at which it will supply consumers of its electrical product in the territory referred to over the maximum rate specified in the said contract, even if the advance in such rate be authorized and approved by the public service commission for the second district. The agreement having been entered into for the benefit of all persons who should purchase land from the Estates of Long Beach subject to the easement mentioned, the defendant cannot be heard to repudiate the contract so entered into as to -the rate at which it will supply electric light to such consumers and at the same time be permitted to retain the benefits, property rights, easements and franchise conferred upon it by the contract. In my judgment the defendant does not present to a court of equity very clean hands when it seeks to hold the benefits of the agreement and repudiates the burdens which the agreement imposes.
The fact that the defendant has filed a new schedule of rates to be charged by it to private consumers of twenty-five cents per kilowatt hour in certain cases, or even that the public service commission for the second
It is not necessary now to inquire into or determine the collateral question which presents itself by the defendant’s action as to whether it has not forfeited the exclusive property rights, easements and franchise conferred upon it by the agreement of April 12, 1912, by reason of its breach of the condition as to the rate upon which the grant was predicated. That question may properly be reserved for consideration at a later stage of this case or in some other action.
Ordered accordingly.