Municipal Gas Co. v. Public Service Commission, Second District

The action seeks to have chapter 227 of the Laws of 1907 declared unconstitutional and to permit the plaintiff to charge a higher price for gas than it has heretofore charged or said statute permits.

The Public Service Commission is charged by section 74 of the Public Service Commissions Law (Consol. Laws, chap. 48; Laws of 1910, chap. 480) with the duty of prosecuting violations of its orders or of the law relating to gas companies. The Commission demurred to the complaint September sixth. The Attorney-General answered on that date denying the allegations of the complaint, and the briefs indicate that' the city of Albany has since answered with denials. If the plaintiff had desired a speedy determination of the matter the demurrer could have been brought to a *759hearing as a motion and the legal question determined in the usual manner. The Code of Civil Procedure contemplates that in an action where there arises an issue of law and an issue of fact the issue of law shall be first tried, unless the court otherwise directs. (§§ 966, 967.) It was unnecessary to grant the temporary injunction. We also conclude that there is grave doubt whether the complaint states a cause of action. (Lee v. O’Malley, 140 App. Div. 595.) The order should be reversed, with costs, and the motion denied, with costs.

All concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.