191 A.D. 279, Clements v. Williams

Citation:191 A.D. 279
Party Name:In the Matter of the Application of ALBERT CLEMENTS, Respondent, for a Peremptory Writ of Mandamus Directed to WILLIAM WILLIAMS, as Commissioner, etc., and Another, Respondents.
Case Date:March 19, 1920
Court:New York Supreme Court Appelate Division, Second Department
 
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191 A.D. 279

In the Matter of the Application of ALBERT CLEMENTS, Respondent, for a Peremptory Writ of Mandamus Directed to WILLIAM WILLIAMS, as Commissioner, etc., and Another, Respondents.

EDISON ELECTRIC ILLUMINATING COMPANY OF BROOKLYN and AMSTERDAM ELECTRIC LIGHT, HEAT AND POWER COMPANY, Appellants.

Supreme Court of New York, Second Department.

March 19, 1920

REARGUMENT of an appeal by Edison Electric Illuminating Company of Brooklyn and another from that part of an order

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of the Supreme Court, made at Special Term and entered in the office of the clerk of the county of Kings on the 13th day of September, 1917, which grants to the petitioner herein an alternative writ of mandamus.

COUNSEL

Samuel F. Moran [George L. Ingraham with him on the brief], for the appellants.

Carr & Hill, for the respondent Clements.

Vincent Victory [Lamar Hardy, Corporation Counsel, Samuel J. Rosensohn and Frank Julian Price with him on the brief], for the respondents commissioner of water supply and borough president.

JAYCOX, J.:

This proceeding was instituted for the purpose of securing a peremptory writ of mandamus directing the president of the borough of Brooklyn and the commissioner of water supply, gas and electricity to remove certain poles and overhead wires from certain streets and avenues in the thirtieth ward, borough of Brooklyn, city of New York, upon the ground that the Edison Electric Illuminating Company has no franchise from the State or from the former city of Brooklyn or from the city of New York to use the streets of the said thirtieth ward to carry on the business of supplying in said ward electric lighting service and was never duly authorized to carry on said business in said ward. The relator alleges and claims no special damage, but bases his claim for relief entirely on the fact that he is a resident and citizen of the borough of Brooklyn, city of New York. The application for a peremptory writ of mandamus was denied and an alternative writ was granted. The corporation defendants have appealed. The relator contends that authority for his right to maintain this proceeding is found in the following cases: People ex rel. Pumpyansky v. Keating (168 N.Y. 390); People ex rel. Cross Co. v. Ahearn (124 A.D. 840, 845); People ex rel. Browning, King & Co. v. Stover (145 id. 259, 263); Acme Realty Co. v. Schinasi (154 id. 397); Southern Leasing Co. v. Ludwig (168 id. 233), and People ex rel. Sibley v. Gresser (205 N.Y. 24). None of these cases involves the question of a franchise. They are based upon some obstruction

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in the street...

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