Opinion
Argued April 5, 1949
Decided April 20, 1949
Appeal from the Supreme Court, Appellate Division, Third Department, BOOKSTEIN, J.
Sherman C. Ward, George H. Kenny, Samuel R. Madison and Joseph J. Doran for appellants. Jacob H. Goetz, James P. Hill, Richard Joyce Smith and Cameron F. MacRae for petitioner-respondent.
The parties to this article 78 proceeding are the Public Service Commission of the State and Consolidated Edison Company of New York, Inc., a gas and electric corporation subject to the Public Service Law. Pursuant to section 114 of that statute, the Commission on December 30, 1948, fixed temporary rates to be charged by the company for electric service supplied to its consumers. Enforcement of that order of the Commission has been stayed by an order of the Appellate Division which is now before us for review upon the following questions certified:
"1. Does the order [for a stay] as granted contain the requisite specific findings required by subdivision 2 of section 23 of the Public Service Law to justify the stay?
"2. Do the facts found in the order as granted constitute great and irreparable damage within the meaning of those terms, as used in subdivision 2 of section 23 of the Public Service Law?"
Section 23 requires that an order suspending an order of the Commission fixing rates "shall contain a specific finding based upon evidence submitted to the court and identified by reference thereto, that great and irreparable damage would otherwise result to the petitioner and specifying the nature of the damage" (subd. 2). The stay in question was granted by the Appellate Division, because in the judgment of that court there were serious questions as to whether the Commission in fixing the temporary rates had exceeded the powers conferred upon it by section 114 of the Public Service Law, and because the rate provisions of that section, as read by that court, "were not designed and are not adequate to meet the situation herein presented where the loss, if the [temporary rate] order is void, may well reach astronomical figures." ( 275 App. Div. 731, 732.)
The answer to these misgivings is to be found, we think, in the construction which this court put upon section 114 in Matter of Bronx Gas Elec. Co. v. Maltbie ( 271 N.Y. 364, 375). Section 114, we there said, "forces the Public Service Commission to consider the returns from the temporary rate and to establish the permanent rate, or the final rate, accordingly; that is, if the temporary rate has proved to be too low the final rate must make it up to the company. Over what time it is necessary to provide a rate sufficient to make up the loss, or to include the take-up, is a matter of adjustment, machinery and method. These matters are all in the hands of the Public Service Commission, which may increase or modify a rate to meet the circumstances at any time."
The recoupment proviso of section 114 is applicable to the temporary rates here in question. Hence, "great and irreparable damage" cannot result to the company from the temporary rate order, notwithstanding the Commission made its own estimate of the depreciation of the used and useful physical property of the company instead of accepting the figures shown on the company's records. Hence, too, the magnitude of the sums that the company may be entitled to recapture does not demonstrate either the existence of "great and irreparable damage" or the inadequacy of the recoupment proviso of section 114 (see Staten Is. Edison Corp. v. Maltbie, 292 N.Y. 611).
The order should be reversed, with costs and the motion for a stay denied. The questions certified are answered in the negative.
LEWIS, CONWAY, DESMOND, DYE, FULD and BROMLEY, JJ., concur.
Order reversed, etc.