charging more than 95 cents per 1,000 feet for gas, the Appellate Division held not under obligation judicially to notice certain facts occurring subsequent to the rendition of the judgment for the commission appealed from.

Appeal from Special Term, Kings County.

Summary proceeding by the Public Service Commission for the First District against the Brooklyn Borough Gas Company. From a judgment for plaintiff (104 Misc. Rep. 315, 171 N. Y. Supp. 937), defendant appeals. Modified and affirmed.

See, also, 106 Misc. Rep. 549, 175 N. Y. Supp. 28.

Argued before JENKS, P. J., and MILLS, RICH, KELLY, and JAYCOX, JJ.

Edward M. Bassett, of New York City (Wilson W. Thompson, of New York City, on the brief), for appellant.

Godfrey Goldmark, of New York City, for respondent.

Judson Hyatt, of New York City (William P. Burr, Corp. Counsel, of New York City, and John P. O'Brien, of New York City, on the brief), for city of New York, as amicus curiæ.

MILLS, J. This is an appeal by the defendant from a judgment entered in Kings county upon a determination of the Kings Special Term, in a summary proceeding taken by plaintiff by petition under section 74 of the Public Service Commissions Law (Consol. Laws, c. 48), which judgment enjoined defendant from charging or collecting from private consumers of gas more than at the rate of 95 cents per 1,000 cubic feet, with leave to defendant to apply at the foot of the judgment for relief from the injunction "on making it appear that a charge in excess of 95 cents per 1,000 cubic feet has, in any manner prescribed by law, become a lawful and reasonable maximum charge."

This proceeding was begun by petition dated August 5, 1918, upon which upon that date an order was made at the Kings Special Term, the same justice presiding, directing defendant to appear and make answer at said term on August 6, 1918. The defendant duly filed its written answer on August 13th, and the court proceeded at once to take the evidence of the parties, and upon the next day signed the judgment, without making any formal written decision or intermediate order. But the justice presiding filed an opinion which gives at considerable length his views and the reasons for his conclusions. As directed by the said preliminary order of August 5th, notice of the proceeding was given also to the corporation counsel of New York City, the Attorney General of the state, and the district attorney of Kings county. Each of those officials appeared before the court upon the hearing, and as well an attorney for consumers so appeared. But upon the argument here only the corporation counsel, of those officials, has submitted a brief. The said preliminary order also contained a stay of the appellant from charging or collecting at a higher rate than 95 cents during the pendency of the proceeding. Upon appearance of the parties before the court upon the original return day, August 6th, defendant made a motion to vacate that stay, and after quite full argument the presiding justice in effect, although in

(178 N.Y.S.)

formally, denied that motion, but it does not appear that any order to that effect was entered.

The material facts are undisputed, and are the following: Defendant supplies gas to private consumers in the Thirty-First ward of the borough of Brooklyn, which was formerly the town of Gravesend, and includes Coney Island, and also to such consumers in a part of the Thirty-Second ward. This proceeding, however, relates only to the Thirty-First ward. Chapter 125 of the Laws of 1906 established a maximum rate for the Thirty-First ward of $1 per 1,000 cubic feet after the year 1910. Defendant complied with that requirement and charged at that rate after 1910, until, upon complaint of certain consumers, the petitioner the Public Service Commission, by order made July 8, 1913, fixed the rate of 95 cents per 1,000 cubic feet. That order was accepted by defendant, and that rate was not changed by the commission before this proceeding was taken and concluded. Chapter 604 of the Laws of 1916 purported to amend the said act, chapter 125 of the Laws of 1906, so as to fix a maximum rate of 80 cents throughout the borough of Brooklyn. Defendant did not attempt to comply with the latter law, but at once upon its going into effect brought an action in equity in this court, in New York county, against the petitioner herein, to have that act declared unconstitutional, as confiscatory, and to enjoin its enforcement against it. That action, being duly at issue, was referred to Hon. Charles E. Hughes as sole referee, to hear, try, and determine. On July 24, 1918, he, having fully heard the evidence and the arguments of the parties, filed his opinion, which at length discussed the evidence and the questions involved, and stated his views and conclusions, which latter were in effect that the said rate of 80 cents was as to this appellant confiscatory, and that therefore it, being the plaintiff therein, was entitled to the relief it asked. The opinion concluded with the statement: "Findings will be signed in accordance with this opinion." Brooklyn Borough Gas Co. v. Public Service Commission, 17 State Dept. Rep. 81, 112-114, 121. Judge Hughes' report was filed in the New York county clerk's office on August 13, 1918, and judgment thereon immediately entered, and the report and judgment were put in evidence in behalf of the appellant upon the hearing or trial hereof later upon the same day. The said report in its conclusions held:

(a) That chapter 125 of the Laws of 1906, as amended by chapter 604 of the Laws of 1916, so far as it fixes the maximum rate of 80 cents, etc., is confiscatory as to the plaintiff, and therefore unconstitutional and void as to the plaintiff.

(b) That the rate of 95 cents per 1,000 cubic feet fixed by the Public Service Commission by the said order made July 8, 1913, was superseded by said chapter 604 of the Laws of 1916, and that since its enactment, "and under the provisions of section 72 of the Public Service Commissions Law, which denies to the commission authority to fix a rate for gas in excess of that fixed by statute, the said commission has had, and now has, no authority to maintain or enforce said 95-cent rate, and said rate since said enactment has been, and is now. of no force or effect."

(c) That the provisions of chapter 125 of the Laws of 1906, fixing rates as above stated, were repealed by said chapter 604 of the Laws of 1916. Respecting this conclusion it may well here be noted that the referee's opinion shows that his view was that the holding of the act of 1916, invalid as against the appellant, did not serve to revive or keep in force the corresponding provisions of the prior act, namely, chapter 125 of the Laws of 1906.

(d) That the plaintiff, the appellant here, was entitled to judgment restraining the defendants from enforcing as against the plaintiff either the 80-cent rate or the 95-cent rate. Judgment accordingly was duly entered on August 13th, at 9 a. m. The record here does not contain the pleadings in that action. It contains only the referee's opinion and report and the judgment entered. We are therefore to assume that the findings and conclusions of the referee were within the issues raised by the pleadings.

The opinion of the learned trial justice herein declared that the entry of that judgment by the appellant's attorney was in violation of the said stay contained in the said preliminary order herein, and he emphatically declared that he would pay no attention to that judgment. Very shortly after the referee had announced his opinion as above stated, and on July 30, 1918, appellant's president attempted to establish a rate of $1.25 per 1,000 cubic feet to be charged and enforced after August 1st then next, and his said action was ratified by appellant's board of directors on August 10th. On August 2d notice of that action was given to petitioner, and that notice led to the institution of this proceeding. On August 3d the commission issued an order purporting to be made under section 66 of the Public Service Commissions Law, requiring appellant within two days to file with the commission a schedule showing its rates then in force, and the date on which the several charges went into effect, and the authority pursuant to which they were made, and directing that the appellant should file such schedule at least 30 days before any change in rate should go into effect. Thereupon appellant did file with the commission a schedule showing that its then rate was $1.25. Before that filing defendant appellant had never filed with the commission any schedule or been ordered by the commission so to do.

There was no finding by the referee that the rate of 95 cents was confiscatory, although his opinion stated that it did not allow appellant a fair return upon its property, and the report was to the same effect. The report made the invalidity of that rate rest upon the present want of authority in the commission to maintain or enforce it, and the referee's opinion indicates that he based that conclusion upon his view that the act of 1916, attempting to fix a maximum rate of 80 cents, was effective to prevent the commission from fixing or maintaining any higher rate, even if the 80-cent rate was void as to this appellant, because under present conditions confiscatory. From the general tenor of the report and opinion it is perhaps likely that upon the evidence before him the referee would have held the rate of 95 cents confiscatory, had he taken the contrary view as to the effect of the act of 1916,

(178 Ν.Υ.S.)

namely, that its invalidity as to this appellant under present conditions still left in force or revived as to it the former act of 1906.

The opinion of the trial justice herein indicates that he reached his conclusion herein against the appellant upon the following views or grounds, namely:

(a) That the judgment in the other action had been entered after this proceeding was commenced and in violation of the stay or temporary injunction herein issued on August 5th.

(b) That no judgment in another action could limit the power or duty of the court herein under said section 74 of the Public Service Commissions Law to "immediately inquire into the facts and circumwithout other or formal pleadings, and without respect to any technical requirement' (italics mine).

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(c) That the adjudged invalidity of the act of 1916 as applied to this appellant did revive as to it the validity of the prior act of 1906 and of the order of the commission made thereunder July 8, 1913, fixing the rate of 95 cents, notwithstanding the contrary decision and judgment in the said other action; and

(d) That even if the said order of July 8, 1913, be no longer in force, yet the attempt of the appellant to establish a rate of $1.25 is an attempt to change its rate, and that under section 72 of the Public Service Commissions Law that change cannot be made, except with the consent of the commission; in other words, that even if the act of 1916 did repeal as to this appellant the act of 1906, and was in itself inapplicable to this appellant as to the rate of 80 cents, still under said section 72 the appellant could not change its then existing rate, except by proceeding under said section, which requires the consent of the commission.

In addition, the opinion of the justice states that the respondent commission claimed before him that in any event the appellant's alleged new rate of $1.25 could not be effective until 30 days after it filed the same with the commission, as required by section 66 of that law; but I do not find in the opinion any expression of the view of the learned justice upon that particular contention.

[1] Apparently the first thing, and perhaps for the most part the only thing, to be determined by us as to this appeal, is whether or not the previous judgment in the other action between the same parties was, upon being put in evidence before the Special Term at the trial hereof, conclusive upon the court as to every fact found and conclusion of law made in and by that judgment, so far as the same matter was involved in this proceeding. Upon elementary principles it must, be held to be so conclusive. Indeed, it is impossible to conceive of any material reason why it should not be held to be so conclusive. The reasons assigned by the learned justice in his opinion seem to be utterly unsound. Certainly the expression in the said section 74, "without respect to any technical requirement," can be given no such effect. The rule making the determination of a competent court of the same issue in a prior action between the same parties conclusive upon those parties and the court as well in another action or proceeding, the same issue being directly involved in both, is a matter of substance and cannot be termed a mere technical requirement. Indeed, the learned trial justice evidently accepted the judgment in the other action as decisive of the issue of the invalidity of the act of 1916 as to the 80-cent rate thereunder, because he had before him no evidence other than the referee's report in that other action that that rate was confiscatory. That judgment, however, was no more binding upon the Special Term herein as to the 80-cent rate than it was as to the 95-cent one. The issue as to each was directly involved in and decided by the other action.

Even if it be true that the entry of the judgment in that other action on August 13th was in violation of the stay in this proceeding by the order of August 5th, as asserted by the learned justice in his opinion, still it is not perceived how even that would affect the binding force of the other judgment. But plainly the entry of that judgment was not a violation of that stay, as that stay did not in terms forbid such entry. Obviously all that was effected by the stay was to prevent appellant from changing its rate during the pendency of this proceeding. Indeed, it is evident that the learned Special Term justice at the first hearing had no idea that the entry of the judgment in the other action would be a violation of the stay in the order of August 5th, because counsel for the appellant herein at the first hearing, in asking for the brief adjournment from August 7th to 13th, which was granted to him, urged as his reason therefor that he had been working night and day for five days preparing the report for Judge Hughes to sign in accordance with his opinion, and the judgment to be entered in that action thereon, and hoped to have them completed and entered and served that very day, and that that judgment would determine the main questions involved in this proceeding and would dispose of the proceeding. I do not find that the learned justice then in any way intimated any contrary view. Indeed, when the corporation counsel demurred to being pressed so rapidly with the entry of that jugdment, the learned justice merely remarked, "That is not before me;" and yet at the next hearing on August 13th the justice expressed even indignation at the fact that appellant's attorney had presumed in the interim to enter judgment in the other action, and declared that entry to be a violation of the said stay. It looks very much as though that view was an afterthought on the part of the justice; but, whether so or not, it was manifestly a mistaken view.

The situation thus presented here appears to be anomalous; at least, 1 recall none like it. It may well be briefly summarized thus: On August 13, 1918, this court by its New York Special Term, after full investigation and hearing of all parties and upon ample evidence, adjudged the 95-cent rate invalid and not binding upon the appellant, and enjoined the respondent commission from enforcing that rate; and yet on the very next day this court by its Kings Special Term, with that judgment in evidence before it, in another action or proceeding, namely, this one, between the same parties, adjudged right to the very contrary, and that, too, upon no other material evidence as to the facts, but really upon those found by the New York Special Term through its referee. That situation is most regrettable. It is naturally design