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lic Service Commissions Law, which provides that "in all investigations, inquiries or hearings the commission or a commissioner shall not be bound by the technical rules of evidence."

[5] It seems to the court that on a motion to quash certiorari only the petition for the writ need be examined on principles analogous to, although possibly not precisely identical with, those on a motion for judgment on the pleadings, in order to ascertain whether the petitioner has made out a prima facie case for the issuance of the writ. If, however, it were proper, in view of the fact that the interests of the public are involved, to consider the statements embodied in the moving and answering affidavits, the conclusions above set forth are only strengthened and reinforced. It appears from the moving affidavits that the commission had before it, in addition to a rough estimate of the value of the property of the New York Railways Company of $45,000,000 made by Dr. Bemis, one of the city's experts, two other estimates, one complete and the other partial, each compiled after exhaustive study of the properties in question. The moving affidavits show that at the hearing the receiver introduced in evidence an appraisal, prepared by the firm of Ford, Bacon & Davis, consulting engineers, showing that the estimated cost of reproduction new, based on normal average pre-war prices and excluding working capital, was $87,030,664, and that this estimated cost of reproduction, after depreciation had been deducted from it, was $68,768,815. It further appears that Charles W. Kellogg, who was connected with the firm of Stone & Webster, testified that he had at the request of the solicitor for the receiver made up an incomplete list of tangible properties which could be easily seen, and disregarding. all intangible property, and that the reproduction cost of this incomplete list of property, exclusive of any overhead expenses, engineering costs and supervision, was about $56,000,000, and that taking such property as might be subject to depreciation, and depreciating it by an amount of 50 per cent., regardless of whether depreciation had accrued or not, the value of this restricted list of property was in excess of $36,000,000.

In an answering affidavit of Dr. Bauer, one of the city's experts, that gentleman states that, taking into account a theory which he calls "functional obsolescence," he "sincerely doubts whether the maximum present value of the property exceeds $20,000,000, and believes it is less." This is the nearest approach to a statement of the relator's idea of the value of the property, and nowhere, either in the petition or affidavits of the relator, is there the slightest pretense of setting forth facts which would tend in any way to indicate that accepting this lowest figure as to the value of the property advanced by any of the parties to the proceeding, the added annual revenue, estimated at $748,249.99, which will be received by the New York Railways Company by reason of the two-cent transfer charge authorized by the commission, will be more than sufficient to afford the company "a reasonable average return upon the value of the property actually used in the public service and to the necessity of making reservation out of income for surplus and contingencies." Public Service Commissions Law, § 49, subd. 1.

(183 N.Y.S.)

It cannot be said that the refusal of the commission to grant the relator an adjournment in order to enable it to prepare and to introduce an appraisal of its own of the property of the New York Railways Company, involving very probably a delay of many months, was so unreasonable that it must now be held as matter of law that the "determination of the commission was not made with due regard * * * to a reasonable average return upon the value of the property. *" If the commission were not given discretion to pass upon such application for an adjournment, its efficiency and promptness of action as a practical matter might be largely weakened. The questions "involving the merits," upon which the decision of the Appellate Division upon a writ of certiorari is to be based, are defined in section 2140 of the Code of Civil Procedure as follows:

* *

"1. Whether the body or officer had jurisdiction of the subject matter * * under review.

"2. Whether the authority, conferred upon the body or officer, in relation to that subject matter, has been pursued in the mode required by law, in order to authorize it or him to make the determination.

"3. Whether, in making the determination, any rule of law, affecting the rights of the parties thereto, has been violated, to the prejudice of the relator. "4. Whether there was any competent proof of all the facts, necessary to be proved in order to authorize the making of the determination.

"5. If there was such proof, whether there was, upon all the evidence, such a preponderance of proof, against the existence of any of those facts, that the verdict of a jury, affirming the existence thereof, rendered in an action in the Supreme Court, triable by a jury, would be set aside by the court, as against the weight of evidence."

[6, 7] Although this court, of course, has no jurisdiction to pass upon the merits of the above questions, even should it desire to do so, it is not only proper for it, but incumbent upon it, to determine upon this motion in the first instance whether it appears from the petition that a prima facie case is established which would under any possible interpretation of the facts as therein alleged warrant the appellate court in answering any of the first four of the above questions in the affirmative. As to the first question, the jurisdiction of the commission over the subject-matter under review is amply secured by section 49 of the Public Service Commissions Law, subds. 1 and 7. As to question 2, the only allegation of the petition which could be construed as bearing thereon is the claim that the application of the receiver was defective and void in that it violated section 20 of the Public Service Commissions Law and section 15 of the rules of the commission promulgated February 18, 1918. Section 29 of the Public Service Commissions Law provides as follows:

"Unless the commission otherwise orders no change shall be made in any rate, fare or charge, or joint rate, fare or charge, which shall have been filed and published by a common carrier in compliance with the requirements of this chapter, except after thirty days' notice to the commission and publication for thirty days as required by section twenty-eight of this chapter, which shall plainly state the changes proposed to be made in the schedule then in force, and the time when the changed rate, fare or charge will go into effect; and all proposed changes shall be shown by printing, filing and publishing new schedules or shall be plainly indicated upon the schedules in force at the time and kept open to public inspection. The commission, for good cause

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shown, may allow changes in rates without requiring the thirty days' notice and publication herein provided for, by duly filing and publishing in such manner as it may direct an order specifying the change so made and the time when it shall take effect."

Section 15 (b) of the rules of the commission reads:

"Changes in schedule may be permitted by the commission on less than the regular thirty days' notice, but such permission will be granted only in cases where actual emergency or substantial merit is shown, or where the change reduces a rate. Application, duly verified, for permission to put in force a schedule or revised or additional sheets on less than thirty days' notice shall be addressed to the Public Service Commission for the First District, State of New York, in the form prescribed in section 22 of these regulations, and must be over the signature of the officer charged with the preparation, posting and filing of schedules, specifying title. Action will be taken only on receipt of a verified application."

No fact is alleged which shows wherein the provisions just quoted have been violated, and the allegations of their violation are, therefore, bald conclusions of law, which merit no further consideration. If, however, the merit of the relator's contention in this regard were to be considered upon the statements in its brief, the contention appears to be that the application was defective in that it failed to specify the exact points at which permission was sought to collect charges for transfers, and thus to give notice to the commission and to the public of the nature of the proposed changes in tariff schedules, including each transfer point, etc. This contention may be answered by saying that nowhere in the section or rule referred to is there any requirement that the place where the proposed charge is to be imposed need be stated; nor is it shown that the commission is without jurisdiction to increase the rates by a blanket order granting permission to charge for transfers at any points where such transfers may lawfully be imposed.

[8] It does not appear that the requirements of section 15, subdivision (b), of the rules of the commission, providing for the form of the application for permission to put new rates into effect on less than 30 days' notice, cannot be waived by the very commission which itself promulgated the rule. Indeed, it has been held that it is no ground for objection that in conducting its proceedings a municipal corporation did not conform to rules established by itself to carry into effect the powers conferred upon it. See Mayor of City of Albany, 23 Wend. 277, 280. In this case the commission by the very order now under review has "otherwise ordered," as authorized by the express terms of section 29 of the Public Service Commissions Law, supra, with respect to the time when the change in rates in question shall take effect. In any event, the court has not a copy of the receiver's application before it, nor is it incorporated in the petition by reference thereto.

[9] In this connection it may be pertinent to refer to the following statement in People ex rel. Moore v. Mayor, 5 Barb. 43, 49:

"Before allowing or acting upon the writ, the court should be satisfied that it is essential to prevent some substantial injury to the applicant.

(183 N.Y.S.)

It should seldom, if ever, be allowed to enable a party to take advantage of mere technical objections."

The allegations of the petition bearing on the questions "whether in making the determination any rule of law affecting the rights of the parties thereto has been violated to the prejudice of the relator," and "whether there was any competent proof of all the facts necessary to be proved in order to authorize the making of the determination," have been considered in an earlier part of this opinion. No point is raised by the relator with reference to question 5, which plainly deals only with the ultimate question to be decided by the Appellate Division and which involves no preliminary question for the consideration of this court. The motion to quash the writ must be granted. Motion granted.

MATIACIO v. ORLANDO. *

(Supreme Court, Equity Term, Erie County. November, 1919.)

Sales 74-Contract allowing repurchase of business held to require reconveyance without allowance for good will.

Where plaintiff, owner of a tailor shop, sold to defendant the fixtures and lease for $300 under a contract giving plaintiff an option to repurchase the chattels described on his return from the army, with a reassignment of the lease, the contract specifying no price to be paid on the repurchase, defendant may be required to reconvey the identical articles conveyed on repayment of price originally paid, without an allowance for good will.

Action by Joseph Matiacio against Pascal Orlando, to compel specific performance of an agreement to resell a tailoring business. Judgment for plaintiff.

John L. Heider, of Buffalo, for plaintiff.

Charles Moulthrop, of Buffalo, for defendant.

WHEELER, J. The plaintiff ran a tailor shop. Having been drafted into the United States army, it became necessary for him to dispose of his business. He made a written agreement with the defendant, whereby the plaintiff sold to the defendant the fixtures in the shop and assigned to him the lease of the shop for the sum of $300. The contract recited that the plaintiff was desirous to "purchase back" the business upon his discharge and return from the United States service, and the agreement contained this clause:

"The party of the second part, in consideration of said sale to him, hereby gives the party of the first part an option to purchase the chattels herein above described upon the return of the first party from the United States service, and agrees to assign said lease of said premises at No. 7 Allen street back to the said party of the first part when he purchases said chattels."

Upon the plaintiff's discharge from the army, he tendered the defendant the $300 paid and requested a bill of sale of the property sold

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes Judgment reversed 192 App. Div. 942, 183 N. Y. Supp. 697.

and an assignment of the lease. The defendant refused to do so, claiming a much larger sum for such a transfer.

This action is brought to compel a specific performance of the agreement. The defendant contends that, inasmuch as no price was named in the contract for the resale of the property, he is entitled to what it is reasonably worth, which is much more than the amount tendered. It is urged that the business has prospered in the absence of the plaintiff, and the defendant is entitled to at least something additional for the good will created. The answer to that claim is that certain specific articles were passed by the plaintiff, together with the lease. Nothing in the agreement prevents the defendant from setting up a shop next door to the shop in question and competing with the plaintiff for business. The defendant is therefore entitled to nothing for good will.

It is true that no price is specified in the contract as that to be paid on the repurchase, but we are of the opinion that the contract must be construed as contemplating the original price of $300. If a different. price was to be paid, it should have been specifically stated. At least the contract should have provided a method of determining the value and price in case of a disagreement. The contract did none of these things, and we are forced to the conclusion that it must be deemed in the contemplation of the parties that the price to be paid for the return of the property was the same as that paid by defendant when he purchased. At least there is no evidence that the specific articles sold in the first instance are worth more than the $300 originally paid. The plaintiff was to get no more. He was not to pay for any good will, or for any addition to the fixtures. He was only to get back what he sold when he entered the army. Anything else the defendant can take away. We think the plaintiff is entitled to the relief asked. Judgment directed accordingly, with costs.

TEITLER v. SCHWARTZ et al.

June 9, 1920.)

(Supreme Court, Appellate Term, First Department. Frauds, statute of 17-Promise to pay debt of another held nonenforceable. Where the written evidence showed a loan to the husband of one defendant, plaintiff cannot recover on a subsequent oral promise by defendants to pay the debt, nor on a written promise by one defendant, which plaintiff refused to accept, because the other defendant declined to sign.

Appeal from Municipal Court, Borough of Manhattan, Second District.

Action by Mina Teitler against Heinrich Schwartz and another. Judgment for plaintiff, and defendants appeal. Reversed, and complaint dismissed.

Argued May term, 1920, before BIJUR, MULLAN, and WAG NER, JJ.

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

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