Witbeck v. Niagara, Lockport & Ontario Power Co.

Majority

p. 586

Howard M. Witbeck, in Behalf of Himself and Other Taxpayers of the City of Lockport, et al., Appellants, v. The Niagara, Lockport and Ontario Power Company et al., Respondents, and City of Lockport, Appellant.

Headnote

Taxpayer’s action — public service corporations — taxpayer’s action to restrain abrogation and compel performance of contract between power company and transmission company whereby former agreed to deliver to latter electric power at specified rate.

Witbeck v. Niagara, Lockport & Ontario Power Co., 218 App. Div. 377 , affirmed.

(Argued February 15, 1928;

decided March 27, 1928.)

Appeal from a judgment, entered December 16, 1926, upon an order of the Appellate Division of the Supreme Court in the fourth judicial department reversing a judgment in favor of plaintiffs entered upon a decision of the court on trial at an Equity Term and directing a dismissal of the complaint in a taxpayer’s action to have adjudged valid a contract between defendants Niagara, Lockport and Ontario Power Company and International Power and Transmission Company and to restrain the abrogation and compel performance of the said contract by the parties thereto. By the contract the Niagara Company was to sell and deliver to the International Company electric power at a stated price. Plaintiffs claimed that all residents of the city of Lockport using or desiring to use electric power had a beneficial interest in the continued performance of the contract.

Frank C. Laughlin, Frank Irvine, Abner■ T, Hopkins, David Tice, George C. Lewis and' C. L. Nicholls for plaintiffs, appellants.

p. 587

George W. Riley, Corporation Counsel, for city of Lock-port, appellant.

Louis L. Babcock and Warren Tubbs for Niagara, Lockport and Ontario Power Company., respondent.

William L. Ransom, William W. Storrs, Henry R. Frost, Jacob H. Goetz and Jeremiah M. Sheehan for International Power and Transmission Company, et al., respondents.

Judgment affirmed, with costs, on opinion of Crouch, J., below.

Concur: Cardozo, Ch. J., Crane, Andrews, Lehman, Kellogg and O’Brien, JJ. Not sitting: Pound, J.