New York State Elec. Corp. v. Pub. Serv. Comm'n of New York

• Decision Date: 19 July 1932
• Citation: 260 N.Y. 32,182 N.E. 237
• Parties: NEW YORK STATE ELECTRIC CORPORATION v. PUBLIC SERVICE COMMISSION OF NEW YORK et al.
• Court: New York Court of Appeals Court of Appeals

260 N.Y. 32

182 N.E. 237

NEW YORK STATE ELECTRIC CORPORATION

v.PUBLIC SERVICE COMMISSION OF NEW YORK et al.

Court of Appeals of New York.

July 19, 1932.

Proceedings in the matter of the application of the New York State Electric Corporation for a certiorari order against the Public Service Commission of the State of New York and others. From an order of the Appellate Division, Third Department (227 App. Div. 18, 236 N. Y. S. 411), annulling in certiorari proceedings a determination of the Public Service Commissioners and remitting the matter to the Commissioners, the defendant appeals.

Appeal dismissed.

Appeal from Supreme Court, Appellate Division, Third department.

Charles G. Blakeslee and Russell B. Burnside, both of Albany, for appellants.

Randall J. Le Boeuf, of Albany, for repondent.

LEHMAN, J.

On March 10, 1928, New York State Electric Corporation and New York Electric Company filed a joint petition to the Public Service Commission praying that New York State Electric Corporation be authorized, under section 69 of the Public Service Law (Consol. Laws, c. 48), to issue 38,250 shares of its common capital stock, without par value, and that the commission grant consent, under section 70 of the Public Service Law, to the acquisition of the proposed new stock by New York Electric Company. The commission made an order authorizing New York State Electric Corporation to issue 30,810 shares of its common stock and to sell such stock for not less than $60 per share. It refused its consent to the acquisition of such stock by New York Electric Company. In certiorari proceedings instituted to review the determination of the Public Service Commission, refusing such consent, the Appellate Division has annulled that determination. The order of the Appellate Division provides that ‘the said matter is remitted to the said Public Service Commission * * * to proceed therewith in accordance with the opinion of this court.’

The order of the Appellate Division is a final order from which an appeal may be taken to this court as of right if the proceedings have been remitted to the Public Service Commission ‘merely for the mechanistic process of putting in force the decision of the Appellate Division.’ In re Grade Crossing in Town of Canton, St. Lawrence County, 255 N. Y. 320, 321, 174 N. E. 695, 696. The appeal must be dismissed if any questions of fact or law are still open for consideration and decision by the original tribunal.

We denied a motion heretofore made to dismiss the appeal, 253 N. Y. 555, 171 N. E. 780, because the exact effect of the opinion of the Appellate Division could not be determined without a careful analysis of the contentions of the parties to this appeal which should await argument of the appeal. Only then could we determine whether the decision of the Appellate Division is conclusive upon every question of fact or law...