Rochester Gas & Electric Corp. v. Maltbie — 298 N.Y. 103

Majority

p. 103

In the Matter of Rochester Gas and Electric Corporation, Respondent, and General Public Utilities Corporation, Intervener, Respondent, against Milo R. Maltbie et al., Constituting the Public Service Commission of the State of New York, et al., Appellants.

Argued June 3, 1948;

decided July 16, 1948.

p. 104

Headnote

MotioN to dismiss appeal renewed. (See 297 N. Y. 961 .)

Edmund B. Naylon, T. Carl Nixon, Earl L. Dey and George Foster, Jr., for respondent.

The order of annulment appealed from does not finally determine the proceeding and consequently this appeal does not lie. (Matter of Golonial Liquor Distributors v. O’Connell, 295 N. Y. 129 ; Matter of New York State Guernsey Breeders’ Co-operative, Inc., v. DuMond, 294 N. Y. 692 ; Matter of New York State Guernsey Breeders’ Co-operative, Inc., v. DuMond, 291 N. Y. 704 ; Matter of Begent v. Noyes, 284 N. Y. 229 ; Matter of Village of Tupper Lake v. Maltbie, 283 N. Y. 720 ; Matter of Village of Wellsville v. Maltbie, 283 N. Y. 689 ; Matter of Newman Lake House, Inc., v. Bruckman, 283 N. Y. 646 ; Matter of New York State Elec. Corp. v. Public Service Comm., 260 N. Y. 32 ; Matter of Grade Crossings [N. Y. C. B. B. Co.], 255 N. Y. 320 ; Matter of Beynolds, 233 N. Y. 606 .)

Allen E. Throop, James B. Liberman and William W. Golub for intervener, respondent.

Petitioner Rochester Gas and Electric Corporation applied to the Public Service Commission (1) for an order, pursuant to section 69 of the Public Service Law, authorizing it to issue and sell specified amounts of bonds and shares of preferred and common stock for concededly proper corporate purposes, and, in connection therewith, (2) for approval by the commission, pursuant to section 38 of the Stock Corporation Law, of a certificate of amendment to its certificate of incorporation to permit the issuance of additional shares of common stock.' The commission, after a hearing, in effect refused to grant the requested authorization and approval except upon petitioner’s compliance with certain conditions aimed at alleged possible impairments in petitioner’s financial structure, as indicated by tentative estimates of the commission.

In this proceeding under article 78 of the Civil Practice Act, the Appellate Division has, by a divided court, held those conditions invalid, annulled the determinations of the commission, and remitted the matter to that agency “ for further consideration.” The commission has taken an appeal as of right to this court. We have denied a motion heretofore made to dismiss the appeal, with leave to renew upon the argument; the matter is now before us upon renewal of the motion.

Neither the order nor the opinion of the Appellate Division specifies the scope of the “ further consideration ” to be accorded by the commission, or the nature of the further proceedings to be taken by it. We assume that the order appealed from would be final if the decision of the Appellate Division left .the commission no alternative but to grant petitioner the requested authorization and approval without the challenged conditions — at least to the extent of permitting petitioner to receive competitive bids for the purchase of the proposed new securities. (Cf. Matter of Colonial Liquor Distributors, Inc., v. O’Connell, 295 N. Y. 129 .) However, analysis of the order and the opinion of the Appellate Division, as well as of the contentions of the parties to this appeal, leaves it doubtful whether the commission would not remain free — upon the remission of the matter to it “ for further consideration ” — to deny petitioner’s application

p. 106

upon findings supported by substantial evidence that, owing to impairment of petitioner’s financial condition, tbe proposed new security issue would not be backed by sound values. Consequently, in tbe absence of clarification by tbe Appellate Division of tbe scope of its decision, we cannot bold that its decision “ is conclusive upon every question of fact or law wbicb might be raised ” or that its order finally determines this proceeding. (Cf. Matter of New York State Elec. Corp. v. Public Service Comm., 260 N. Y. 32 , 34.) We express no opinion upon tbe merits of tbe case.

Tbe appeal should be dismissed, with costs, without prejudice, however, to tbe right of tbe commission to move in tbe Appellate Division for a resettlement of that court’s order to specify tbe nature of the-“ further consideration ” to be accorded, or of tbe further proceedings to be taken, upon tbe directed remission to tbe commission.

Cb. J., Lewis, DesmoNd, Thaohee, Dye and Fuld, JJ., concur; CoNway, J., taking no part.

Appeal dismissed, etc.

Cases cited

Rochester Gas & Electric Corp. v. Maltbie 297 N. Y. 961 N.Y. 1948-04-23 p. 104
Colonial Liquor Distributors, Inc. v. O'Connell 295 N. Y. 129 N.Y. 1946-01-17 p. 104
New York State Guernsey Breeders' Co-operative, Inc. v. Du Mond 294 N. Y. 692 N.Y. 1945-03-01 p. 104
Begent v. Noyes 284 N. Y. 229 N.Y. 1940-11-19 p. 104
Christie Chassis, Inc. v. Christ 283 N. Y. 646 N.Y. 1940-05-28 p. 104
New York State Electric Corp. v. Public Service Commission 260 N. Y. 32 N.Y. 1932-07-19 at 34 p. 104, p. 106
In re the Elimination of Grade Crossings of the New York Central Railroad 255 N. Y. 320 N.Y. 1931-01-06 p. 104
In re the Accounting of Reynolds 233 N. Y. 606 N.Y. 1922-05-02 p. 104

Statutes and regulations cited

Public Service Law p. 104