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(182 N.Y.S.) court quotes with approval from Knox v. Lee, 12 Wall. 457, 550, 551 (20 L. Ed. 287), viz.:

"Contracts must be understood as made in reference to the possible exercise of the rightful authority of the government, and no obligation of a contract can extend to the defeat of legitimate government authority.”

Consequently it was held in the South Glens Falls Case that the state, acting through its Public Service Commission, had the authority, acting under its general police powers, to increase the rate chargeable to private gas consumers above that stipulated in its franchise grant. See, also, Union Dry Goods Co. v. Georgia Public Service Corporation, 248 U. S. 372, 39 Sup. Ct. 117, 63 L. Ed. 309; International Ry. Co. v. Public Service Com'n, 226 N. Y. 481, 482, 124 N. E. 123.

[3] When and by whom shall this police power be exercised to modify an existing franchise rate? The evident answer is only by the state through its regularly constituted authorities. It would seem most illogical that a party to such franchise contract, desiring to avoid its obligations, might on its own motion, and without the consent of state authority, repudiate its obligations under the franchise, and undertake to exercise the police power alone vested in the state. But that in effect is just what the defendant in this case has undertaken to do. It is true it has petitioned the Public Service Commission for leave to increase its rates for gas furnished consumers, and that proceeding is now pending before that body; but until a final decision in that proceeding is rendered, and for the time being, the defendant proposes to charge consumers the increased rate specified in its amended tariff schedule. In other words, it proposes to be a law unto itself for the time being, and until the Public Service Commission finally acts. We do not think that position can be sustained upon principle, and that until the Public Service Commission decides the defendant is entitled to a higher rate for gas it is bound by the franchise rates agreed on in the grants given by the village plaintiffs. It is for the state to determine whether a modification of the franchise rate shall be made, and not for the defendant.

These views are not in conflict with the decision of this court in the case of Public Service Commission v. Iroquois Natural Gas Co., 184 App. Div. 285, 171 N. Y. Supp. 379. The Public Service Commission in that case sought to enjoin the Iroquois Natural Gas Company from charging consumers an increased rate for natural gas pending the final decision of the commission on an application made by the gas company to increase its former rate. The Iroquois Natural Gas Company operated in the city of Buffalo, but the franchise obtained from that city in no way undertook to fix or limit the price to be paid by consumers. The Public Service Commission, however, based its claim to restrain temporary advances in rates pending the application before it to increase rates on a stipulation entered into between the commission and that company, in which it had been agreed that, in consideration of the consent of the Commission to a certain capitalization of the gas company, that company would not

use such capitalization as a basis for an increase of the then rate to consumers.

This stipulation was before the Appellate Division for analysis and interpretation, and the court, construing its provisions, held that it was only an agreement not to use the capitalization of the company as a basis for a change of rate, and was not an agreement that no new schedule of rates should be filed with the Public Service Commission and put into operation, as authorized by the Public Service Commissions Law, until superseded by the order of the Public Service Commission. It will be noted that in the Iroquois Natural Gas Company Case no franchise rate existed, and no rate even established or agreed on by the stipulation referred to, which differentiates that case from the one now in hand.

The Appellate Division apparently denied an injunction against the Iroquois Natural Gas Company, holding the stipulation only related to the capitalization as a basis of rate, and did not prevent the gas company from proceeding as authorized by the Public Service Commissions Law. The decision turned entirely on the construction of the stipulation before the court, and not on the question now before us. It might be argued, however, that inferentially at least the Iroquois Natural Gas Case is an authority in support of the views here expressed, for, had the contention now urged by the defendant been good, it would have been sufficient for the Appellate Division to have held that the law gave the Iroquois Gas Company the right to raise rates whether the stipulation fixed a rate or not. This the Appellate Division did not hold, but disposed of the case on other grounds.

We think the plaintiffs have established the right to the injunction asked. Our decision is based on the theory that the terms of franchises such as the defendant enjoys in the villages of Perry and Warsaw cannot be disregarded by the defendant until the franchises are modified by the state, acting through its Public Service Commission, under the police powers reserved to the state.

The plaintiffs' motions for injunctions are therefore granted.
So ordered.

(110 Misc. Rep. 730)

STEEL et al. v. NORTON et al. (Supreme Court, Special Term, Suffolk County. December, 1916.) 1. Partition Om51—Publication on affidavits as to unknown owners held to

give the court jurisdiction.

Where the attorney for plaintiffs who had searched and was familiar with the title, and had discovered all save a small part of the owners, stated in his affidavit that he did not know the parties entitled to those outstanding interests, jurisdiction was acquired by publication of the notice required by Rev. St. pt. 3, tit. 2, c. 1, § 124, as amended by Laws 1831, c. 200, and Laws 1812, c. 277, in view of Code Proc. § 448, then in force, where certain property was set off to "unknown owners," and where the old, unrecorded deeds, under which descendants and successors in ti tle of such alleged unknown owners claimed, were not discovered for

more than 25 years after the action. Om For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(182 N.Y.S.) 2. Partition 51-Order of publication in notice held sufficiently accurate

as to description of beach land.

In an action for partition, a notice on which publication was had under the then existing statutes, addressed to "the unknown owners and all persons interested in the premises described in the complaint, and herein above referred to or any part thereof,” and describing the lands as “lands in the county of Suffolk, known as the Great South Beach,” without giving boundaries, and which description covered too much rather than too little, was sufficiently accurate, as it would have advised any owner of undivided interests in a part of the beach that pending litigation affected his property, especially where a reference to the complaint

would have given him the boundaries. 3. Partition 51--Publication of notice in action for partition of beach

land in 1871 held sufficient.

Publication notice in an action for the partition of a strip of beach, in which there were known to be unknown owners, made as directed in the state paper at Albany and in a local paper for three weeks, being the precise requirement of Rev. St. pt. 3, tit. 2, c. 1, § 124, as amended by Laws 1842, c. 277, § 3, and section 4, in force in 1871, when the suit was brought, was sufficient. Action in partition by George E. Steel and others against Washington F. Norton and others. Complaint dismissed. Judgment affirmed. 182 App. Div. 903, 168 N. Y. Supp. 1130.

See, also, 183 App. Div. 937, 169 N. Y. Supp. 1115.
Gilbert Ray Hawes, of New York City, for plaintiffs.
William J. Nicoll, for defendants.

KELLY, J. In this action the plaintiffs and the defendants, other than the Sammis executors and Atlantic Beach Realty Company, assert the right to partition lot 49 on the map made by the commissioners appointed by the judgment in the partition action of Greene v. Sammis, on March 19, 1878. The property affected by that partition action comprised a strip of land on the Great South Beach ; not the entire beach, but a considerable portion of it. The commissioners appointed to make actual partition divided it into lots, and set the lots apart to various ownerships determined in the action. Lot 49 was set apart to David S. S. Sammis, deceased, and title subsequently vested in the defendant Atlantic Beach Realty Company. Certain of the lots were set off to "unknown owners.”

The plaintiffs and the defendants named object that jurisdiction was not acquired in the action of Greene v. Sammis over their ancestors and predecessors in title, who they say were owners of undivided shares in the property, and they therefore bring this action, some 35 or more years after the entry of the final judgment in Greene v. Sammis on September 18, 1878.

While the case at bar only affects one of the lots (lot 49) affected by the old judgment, the court is advised that similar actions have been commenced affecting the entire tract partitioned in Greene v. Sammis. During the 38 years since 1878 the property affected by the decree in Greene v. Sammis has passed into the hands of many different owners, and especially during the last 10 years the Great South Beach has been developed over the territory affected, and cottage settlements

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

have sprung up, such as Point of Woods, Saltaire, Water Island, and other similar localities. The plaintiffs' claims affect all this property. Money has been invested on the strength of the validity of the old decree, and many people, strangers to the proceeding, have located along the beach.

While it is true that, owing to the nature of the land, adverse possession for 20 years is not pleaded or proved, the case of the plaintiffs and the defendants in sympathy with them is peculiar, in the fact that it is not asserted that they or their ancestors or predecessors in title ever asserted any right in the beach, although they all lived in the vicinity. Their rights, if they have any, depend on certain old unrecorded deeds, dating some of them back over 100 years, and which were discovered at a comparatively recent date by Mr. Conklin, of Freeport, in a secret drawer in a desk belonging to his father or grandfather. So far as appears, none of these ancestors or predecessors in title knew that they had any interest in Great South Beach. That there were "unknown owners” of Great South Beach at the date of the partition in Greene v. Sammis (1871-1878) must be conceded. It is claimed that the plaintiffs' attorney, Mr. James H. Stanbrough, now deceased, formerly a well-known lawyer in Suffolk county, residing in Smithtown, should have known who these “unknown owners” were, although the owners theniselves did not know it, and that this affidavit upon which an order of publication of notice was obtained was not sufficient to confer jurisdiction on the court to make the order for publication of the notice to bring them in. There are also criticisms on the form of the notice and its publication. If the court acquired jurisdiction of the ancestors and predecessors in title of the plaintiffs and the defendants in accord with them, they have no right to maintain this action.

I have carefully examined the briefs submitted by the learned counsel for the parties, and the proceedings in Greene v. Sammis. A large part of the briefs is occupied in discussing the various interests of the parties now before the court, and the devolution of title, and the sufficiency and effect of these old deeds. But, as suggested, the crucial question is whether the court obtained jurisdiction over the unknown owners in Greene v. Sammis. If jurisdiction was obtained, it is idle to go into the various questions of ownership, etc., presented by the deeds, wills, etc.

[1] The question involved is interesting and important, but, if there is to be any stability in real estate titles, this would appear to be an extreme case, where title to an entire tract of land, miles in extent, is sought to be overturned nearly 40 years after a partition decree which had been accepted in the meantime as the basis of all title in the locality, and this attack is based upon deeds and papers which never saw ihe light of day for 35 years after the final decree settling the title, and the existence of which was unknown to the ancestors and predecessors of the parties now before the court.

In partition actions it must often happen that the transfer and disposition of real estate will come to a standstill unless some means is provided for caring for the interests of the owners of undivided shares

(182 N.Y.S.) in the real estate whose identity and whereabouts cannot be ascertained. This is not an unusual situation, and the law has always sought to provide a method by which such interests may be protected, and still allow title to the land to pass. In the case at bar a substantial allotment of land was made for the benefit of the persons inter ested in the beach whose identity was unknown.

I think the court acquired jurisdiction of the unknown owners, the ancestors and predecessors of the plaintiffs and the defendants now attacking the decree in Greene v. Sammis. The jurisdiction was acquired by the publication of the notice required by the Revised Statutes, as amended by Laws 1831, c. 200, and Laws 1842, c. 277. In 1871, at the date of the commencement of the partition of Greene v. Sammis, section 448 of the Code of Procedure had been enacted and was in force. It was there provided that

"The provisions of the Revised Statutes relating to the partition of lands, tenements and hereditaments, held or possessed by joint tenants, or tenants in common, shall apply to actions for such partition brought under this act, so far as the same can be so applied to the substance and subject-matter of the action, without regard to its form."

It was held in Sandford v. White, 56 N. Y. 359, that the provisions of the Revised Statutes applicable to partition actions in the former Court of Chancery were continued in effect with relation to such actions in the Supreme Court by virtue of the provisions of section 448 of the Code of Procedure cited above, notwithstanding the abolition of the Court of Chancery by the Constitution of 1847.

The learned counsel for the parties attacking the decree in Greene v. Sammis present various arguments against the procedure adopted in that case. It is said that the affidavit upon which the order of publication was granted is insufficient, because it states simply conclusions, and does not give details, etc. The only requisite averment, under the statute as I read it, is that there are unknown owners, persons entitled to some interest in the property who are unknown, and that “proof by affidavit” of this fact must be submitted to the court. If such averment was made, if proof by affidavit was submitted, the court had the necessary jurisdiction to make the order for publication of the notice, and it cannot be attacked collaterally, even though now, in 1916, we may think the proof should have been stronger or more details given. If there was proof and it was satisfactory to the judge who signed the orders it was sufficient. Kennedy v. Lamb, 182 N. Y. 228, 74 N. E. 834, 108 Am. St. Rep. 800.

It will be noted that there is no requirement in the statute that the affidavit should show the method by which the affiant reaches the conclusion that there were unknown owners. Such provisions are in our present-day statutes with reference to parties known, and who cannot be served within the state. Effort to serve the process must be shown and it is not sufficient to aliege “diligent effort,” without the details. Kennedy v. Lamb, supra. But from the very nature of things such averments are inapplicable in the case of unknown owners, and Chief Judge Church comments upon this in his opinion in Sandford v. White, supra. That there were owners unknown at the date

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