Morrell v. Brooklyn Bor. Gas Co., Appeal No. 2.

• Decision Date: 14 July 1921
• Docket Number: Appeal No. 2.
• Citation: 132 N.E. 130,231 N.Y. 405
• Parties: MORRELL v. BROOKLYN BOROUGH GAS CO.
• Court: New York Court of Appeals Court of Appeals

231 N.Y. 405

132 N.E. 130

MORRELL

v.BROOKLYN BOROUGH GAS CO.

Appeal No. 2.

Court of Appeals of New York.

July 14, 1921.

Suit by Gerald Morrell against the Brooklyn Borough Gas Company for an injunction. From an order of the Appellate Division of the Supreme Court in the Second Judicial Department (195 App. Div. 899,185 N. Y. Supp. 890), which affirmed an order of the Supreme Court, Special Term, granting the motion of the City of New York for leave to intervene as a party plaintiff (113 Misc. Rep. 72,184 N. Y. Supp. 656), defendant appeals by permission.

Reversed.

The following questions were certified (-- App. Div. --, 186 N. Y. Supp. 948):

‘(1) Had the city of New York any interest in this cause of action?

‘(2) Is the city of New York a proper party so that the court at Special Term had power to its application to be joined as a party plaintiff herein?'

Appeal from Supreme Court, Appellate Division, Second department.

Bassett, Thompson & Gilpatric, of New York City (Edward M. Bassett and Wilson W. Thompson, both of New York City, of counsel), for appellant.

Gerald Morrell, of Brooklyn, in pro. per.

John P. O'Brien, Corporation Counsel, of New York City (James A. Donnelly and Judson Hyatt, both of New York City, of counsel), for intervener respondent.

William L. Ransom, of New York City (Robert E. Coulson, and Cooley E. Williams, both of New York City, of counsel), for Empire State Gas & Electric Ass'n, amicus curiae.

CRANE, J.

The nature of this action is stated in Morrell v. Brooklyn Borough Gas Co. (No. 1) 132 N. E. 129. The plaintiff, as a resident of the Thirty-First ward of the borough of Brooklyn, New York City, seeks to enjoin the defendant from collecting for gas the rate fixed by the Public Service Commission. No contract with the city of New York is involved; it is solely a question of the price which a private consumer must pay. Under section 452 of the Code of Civil Procedure the city of New York has been permitted to intervene as a party plaintiff. That section provides that, where a person, not a party to the action, has an interest in the subject thereof, the court must direct him to be brought in on his application. The interestreferred to is a property interest, or some duty or right devolving upon or belonging to the party to be brought in.

Here the city of New York has no such interest in the cost of plaintiff's gas. The defendant's franchise comes from the state. The Legislature has either fixed the rate to be charged consumers or else has left the matter to the Public Service Commission. The city of New York is given no power over rates. It is a state matter, part of the police power which the state has continually exercised. It would be different if the decision of this case involved or affected a contract with the city to furnish gas to it or any of its departments.

We cannot see how the rights, property, or duties of the city are in any way involved. A particular rule of law may affect a large number of citizens, and yet give the city no such interest as permits it to intervene. Questions might arise which so affected the welfare or rights of all the inhabitants of the city as to justify the court in permitting the municipality being made a party to the proceeding, but this is not such a case. Matter of Quinby v. Public Service Commission, 223 N. Y. 244, 119 N. E. 433, 3 A. L. R. 685, and Matter of International Ry. Co. v. Rann, 224 N. Y. 83, 89,120 N. E. 153, are not in point, as the questions touched upon the municipality's right to fix permanent rates in franchises. But...