(118 Misc. Rep. 630) CLUTE v. NASSAU & SUFFOLK LIGHTING CO. GARDEN CITY CO. v. SAME. (Supreme Court, Nassau County. May, 1922.) Constitutional law 154 (2)-Public Service Commission's order fixing gas rates held applicable to individual, with which gas company had contract entered into prior to grant given Public Service Commission to fix rates. Gas company's contract with a private individual, fixing the price of gas to be furnished the individual, entered into prior to the grant by the state to the Public Service Commission of the power to fix gas rates by Public Service Commission Law, § 66, subd. 5, did not make the commission's order fixing the gas rates to be charged by such company, on the company's compliance with subdivision 12, inapplicable to such individual; the contract having been entered into with knowledge of the power of the state to regulate rates. Actions by Frank M. Clute and by the Garden City Company against the Nassau & Suffolk Lighting Company. On motions by defendant to dismiss complaints. Complaints dismissed. C. Walter Randall, of New York City, for plaintiff. Randall J. Le Boeuf, of Albany (Luke D. Stapleton, of New York City, of counsel), for defendant. MacCRATE, J. In September, 1907, the defendant entered into a written contract with the Garden City Estates. In December, 1909, it entered into a written contract with the plaintiff, The Garden City Company. In both contracts the defendant undertook to supply gas to these companies, engaged in real estate development, and to the purchasers of lots in the sections owned by them. Each contract contained a provision as follows: "The fighting company shall furnish all consumers along the lines of said mains, gas meters, and shall supply sufficient gas for all purposes to all persons desiring the same, at rates and charges never exceeding the rates and charges imposed by the lighting company for gas supplied by it to consumers within the town of Hempstead (except the village of Freeport) and North Hempstead and in no event exceeding one dollar and a half per thousand feet." The plaintiff Clute is one of the purchasers from the Garden City Estates. The defendant claims the right to collect more than $1.50 per 1,000 cubic feet, because in January, 1920, it filed amended schedules fixing $1.75 per 1,000 cubic feet, and otherwise complied with the provisions of subdivision 12 of section 66 of the Public Service Commission Law (Consol. Laws, c. 48), and because, on January 6, 1921, after hearing complaints, the Public Service Commission made an order authorizing it to collect from all its customers a sum in excess of $1.75 as provided by the amended schedules filed as aforesaid. The plaintiffs seek to enjoin the collection of any rate in advance of the amount fixed by the contracts. Moreover, they contend that the order of January 6, 1921, is not, in any event, binding on them, because the village of Garden City was not one of the villages repre For other cases see same topic & KEY-NUMBER in ail Key-Numbered Digests & Indexes (195 N.Y.S.) sented before the commission, and because it was not named in the proceeding in which the order was made. However, under the provisions of subdivision 5 of section 66 of the Public Service Commission Law, the commission has power, with or without complaint, to fix rates, and since the order of January 6, 1921, includes all the customers of the defendant, it will bind these plaintiffs, provided the rate of $1.50 fixed by the contracts is not unalterable. There is therefore presented the question: Is a contract entered into between a gas company and a private individual, prior to the grant by the state to the Public Service Commission of the power to fix gas rates, exempt from the exercise of that power? For the purposes of this decision, we will assume, notwithstanding the contract is under seal, that the plaintiff Clute has the same right to enforce the contract as the Garden City Estates. It is suggested, but not decided, in the case of People ex rel. Village of South Glens Falls v. Public Service Commission, 225 N. Y. 216, 221, 121 N. Y. 777, that contracts such as are herein involved are protected by the state and federal_Constitutions. But in the case of Union Dry Goods Co. v. Georgia Public Service Corporation, 248 U. S. 372, 39 Sup. Ct. 117, 63 L. Ed. 309, 9 A. L. R. 1420, decided in the same month as People ex rel. Village of South Glens Falls v. Public Service Commission, supra, the Supreme Court of the United States held that the federal Constitution presented no barrier to the exercise of the police power of the state, even though the exercise of such power modified contracts between private individuals. Thereafter, although not necessary to its decision, in the case of People ex rel. City of New York v. Nixon, 229 N. Y. 356, 359, 128 N. E. 245, 246, the opinion of the Supreme Court of the United States was quoted with approval. In addition, the Court of Appeals said: "The question soon arose whether the new rule [regulation by commission] was retroactive, and annulled existing contracts in conflict with its terms. Indisputably it annulled such contracts between carriers and passengers, or carriers and shippers." We are not confronted with the constitutional provision involved in Quinby v. Public Service Commission, 223 N. Y. 244, 119 N. E. 433, 3 A. L. R. 685. Moreover, that case decided only, even if the state had power to regulate rates fixed by municipalities as a condition for the use of their streets by railroads, that power had not then been granted unequivocally to the Public Service Commission. But it has since been determined, in People ex rel. Village of South Glens Falls v. Public Service Commission, supra, that the state has granted to the public service commission full power to regulate gas rates. In view of the determination by the Supreme Court of the United States. that the federal Constitution interposes no barrier to the exercise by the state of its power of rate regulation where private contracts are concerned, there remains only the possibility suggested in the Glens Falls Case of a barrier by our state Constitution. When the nature of the power is considered, it is difficult to see why a different conclusion should be reached as to private contracts than was reached in the Glens Falls Case as to stipulations in municipal consents. The power of rate regulation adheres to the state as part of its general police power. When the defendant gas company organized, it entered into a business of a public character by permission of the state. It was that business which immediately subjected it to the possibility of an exercise by the state of the police power. Whether municipalities or private individuals or corporations were its customers, the defendant was engaged in meeting a public need. Gas was the subject-matter of all the contracts. Even the state could not contract away nor abandon its police power, the exercise of which might become necessary to more effectually serve the public need. How, then, can any of them claim the power to partially destroy it by their contracts, to which the state is not a party? It has been held (Town of North Hempstead v. Public Service Corporation of Long Island, 231 N. Y. 447, 132 N. E. 144) that the statute creating the commission forms part of franchises subsequent to its enactment. If all gas contracts subsequent to the delegation of the power to an agent of the state must be held to be made with knowledge of and subject to that delegation, we are constrained to hold that gas contracts prior thereto are made with knowledge of the existence of the power in the state itself, and are subject to the exercise thereof at such time as the state may determine. Complaints dismissed. Judgments accordingly. (118 Misc. Rep. 754) 905 WEST END AVE. CORPORATION v. PEERS. (Supreme Court, Appellate Term, First Department. June, 1922.) 1. Judgment 180-Rule of civil practice providing for summary judgment held inapplicable to a summary proceeding by a landlord. Rules of Civil Practice, No. 113, providing for a summary judgment on the pleadings in an action to recover a debt or liquidated demand arising in specified cases, held inapplicable to a summary proceeding by a landlord. 2. Landlord and tenant 305(1)-Answer in summary proceeding held sufficient. In summary proceeding by a landlord, answer containing the statutory defense, and denying that the landlord had personally demanded the rent, held sufficient on motion for judgment on the pleadings. Appeal from Municipal Court, Borough of Manhattan, Fifth District. Summary proceeding by the 905 West End Avenue Corporation, landlord, against Henry E. Peers, tenant. From an order granting the landlord's motion to strike out the affirmative defense contained in tenant's answer as insufficient in law, and from a summary judgment granting a final order, the tenant appeals. Final order reversed, motion to strike out answer denied, and case placed on general calendar. Argued March term, 1922, before GUY, COHALAN, and WAGNER, JJ. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (195 N.Y.S.) L. E. Schlechter, of New York City, for appellant. PER CURIAM. The motion was made for judgment on the pleadings, under rule 113 of the Rules of Civil Practice, referring to "An action to recover a debt or liquidated demand arising, 1, on a contract, express or implied, sealed or not sealed; or 2, on a judgment for a stated sum." [1, 2] We are of the opinion that the rule is inapplicable to a summary proceeding. Moreover, if considered as a motion for judgment on the pleadings, the granting of the motion was unauthorized, because an issue was raised not only by statutory defense, but also by the denial of personal demand of the rent by the landlord. Final order reversed, with $10 costs to appellant, motion to strike out answer denied, with $10 costs, and case placed upon the general calendar. Order reversed. (119 Misc. Rep. 184) PEOPLE ex rel. FOGELHUT v. TUOMEY, Clerk of Municipal Court. (Supreme Court, Special Term, Kings County. July 28, 1922.) Landlord and tenant 200(11⁄2)-Tenant, appealing from judgment increasing rental, not required to deposit rent that would have accrued at the increased rate prior to the entry of judgment. Under Laws 1921, c. 434, § 9, requiring tenant, on appeal from judgment entitling a landlord to charge increased rent, to deposit as a condition of a stay of judgment "the amount of the judgment, and thereafter monthly, until the final determination of the appeal, an amount equal to one month's rent computed on the basis of the judgment," the tenant was not required to deposit all of the rent that would have accrued at the increased rate prior to the entry of the judgment. Mandamus by the People of the State of New York, on the relation of Ricca Fogelhut, against James W. Tuomey, as Clerk of the Municipal Court of the City of New York, Borough of Brooklyn, Seventh District. Motion denied. Emanuel Mehl, of Brooklyn, for the motion. John P. O'Brien, Corp. Counsel, of New York City, and Joseph P. Reilly, Asst. Corp. Counsel, of Brooklyn, opposed. CROPSEY, J. A landlord brought actions for increased rent, which resulted in his favor; the court fixing the reasonable rental at a figure larger than the tenants had been paying. Owing to delays, including time taken on appeal, the judgments were not rendered until a year after the period for which the rent was sought. Upon the entry of the judgments the tenants paid the amounts of them into court and filed notices of appeal. The landlord, claiming the tenants had not done as the law required, and were therefore not entitled to a stay pending their appeals, applied to the clerk of the Municipal Court for For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes warrants. These the clerk refused to issue. This application seeks a mandamus to compel their issuance. The point is this: The landlord contends the tenants were obliged to deposit all the rent that would have accrued at the increased rate fixed by the judgments prior to the entry of the judgments. It is conceded the tenants must deposit rents at the new rates as they accrue for all months subsequent to the entry of judgments until the appeals are determined. It is also conceded the tenants have paid, pending the trial, the rents at the old rates. This they were required to do, to litigate the question of the reasonableness of the landlord's new demands. But they have not paid the difference between the old and new rates for the months intervening the one for which suit was brought and the time of entry of judgment. They contend that is not required. The statute says (Laws 1921, c. 434, § 9) that, in case of an appeal, there shall be no stay, unless the defendant deposits "the amount of the judgment, and thereafter monthly until the final determination of the appeal an amount equal to one month's rental computed on the basis of the judgment." This plainly requires the deposits other than the amount of the judgment to be made monthly thereafter. This means after the entry of judgment. There is no requirement that the tenant must pay at the new rate for any period prior to the entry of judgment, except for the period covered by the judgment itself. There is no hardship to the landlord in this. He could have started actions for each month's rent during that intervening period, and, if so, bring them to trial now. The judgments obtained already will make any defense in the other actions very difficult. Motion denied. Ordered accordingly. FLECK & HILLMAN v. WABASH RY. CO. (Supreme Court, Appellate Division, First Department. May 12, 1922.) 1. Appeal and error 359-Motion for leave to appeal to be made at term following service of judgment. A motion for leave to appeal will be denied, where not made at the term following service of judgment with notice of entry thereof, under Civil Practice Act, § 591. 2. Appeal and error 363-Movant for appeal must show question of law involved. A motion for leave to appeal will be denied, where there is no showing that any question of law is involved which ought to be reviewed by the Court of Appeals. Action by Fleck & Hillman against the Wabash Railway Company. Motion for leave to appeal denied. See, also, 200 App. Div. 482, 193 N. Y. Supp. 131. PER CURIAM. [1, 2] Motion for leave to appeal denied, with $10 costs, on the ground that it was not made at the term following service of judgment with notice of entry thereof (section 591, Civil For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |