Opinion
March 20, 1961
In a proceeding under article 78 of the Civil Practice Act, to compel the Consolidated Edison Company of New York, Inc., to supply electric current to the premises occupied by the petitioner, the Edison Company appeals from so much of an order of the Supreme Court, Queens County, dated August 4, 1960, as denies its motion to dismiss the petition and as grants in all respects, without a trial, the petitioner's application and directs the Edison Company to supply forthwith electric current to petitioner's premises. Order modified: (1) by striking out the third decretal paragraph granting the petitioner's application, and (2) by striking out the fourth decretal paragraph directing the Edison Company to supply current forthwith. As so modified, the order, insofar as appealed from, is affirmed, without costs; and the proceeding is remitted to the Special Term for a trial. The pleadings raise issues of fact. Without taking proof the Special Term decided such issues on the basis of the pleadings and affidavits. In our opinion, this was error. The issues of fact here raised should be resolved after a trial and the taking in open court of all the proof bearing upon such issues. Pending the trial and the entry of the final order, the Edison Company is stayed from discontinuing its supply of electric current to petitioner's premises. Nolan, P.J., Beldock, Ughetta, Kleinfeld and Brennan, JJ., concur. [ 25 Misc.2d 359.]