Morrell v. Brooklyn Borough Gas Co. No. 2

Parties — municipal corporations — right to intervene — when city has not interest entitling it to intervene in action to enjoin gas company from collecting for gas at rate fixed by public service commission. 1. The interest referred to in section 452 of the Code of Civil Procedure providing that where a person, not a party to the action, has an interest in the subject thereof the court “ must direct him to be brought in by proper amendment,” is a property interest or some duty or right devolving upon or belonging to the party to be brought in. Chapter 247 of the Laws of 1913, known as the “ Home Rule Law,” creates no such interest as is meant by this section. 2. Where in an action to enjoin a gas company from collecting for gas a rate fixed by the public service commission, the rate involved does not affect the city as a consumer, touches no rate established by the city, and no power has been vested in the city to control or interfere with gas charges, the city has no interest entitling it to intervene. (Matter of Quinby v. P. S. Comn., 223 N. Y. 244; Matter of International Ry. Co. v. Rann, 224 N. Y. 83, distinguished; Consolidated Gas Co. v. Newton, 256 Fed. Rep. 238; 260 Fed. Rep. 1022; 253 U.S. 219, followed.)

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered January 7, 1921, which affirmed an order of Special Term granting a motion by the city of New York for leave to intervene as a party plaintiff. The following questions were certified: “ 1. Had the city of New York any interest in this cause of action? “ 2. Is the city of New York a proper party so that the court at Special Term had power to grant its application to be joined as a party plaintiff herein? ” Certified question No. 1 should be answered in the negative. (B. B. Gas Co. v. P. S. Comm., 17 State Dept. Rep. 81; Matter of International Ry. Co. v. Rann, 224 N. Y. 83.) Certified question No. 2 should be answered in the negative. (City of New York v. Bryan, 196 N. Y. 158; Trustees of Southampton v. Jessup, 162 N. Y. 122; City of New York v. N. Y. Rys. Co., 217 N. Y. 310; Matter of International Ry. Co. v. Rann, 224 N. Y. 83; Dillon on Mun. Corp. [5th ed.] § 1325; People v. Ingersoll, 58 N. Y. 1; City of Georgetown v. Alexandria Canal Co., 12 Pet. 91; Northern Pacific R. R. Co. v. Whalen, 149 U. S. 157; Town of Guilford v. Supervisors of Chenango Co., 13 N. Y. 143; People v. Albany & Susquehanna R. R. Co., 57 N. Y. 161; People v. Lowe, 117 N. Y. 175; City of Yonkers v. Federal S. R. Co., 136 App. Div. 701; 207 N. Y. 724; Board of Education v. Board of Education, 76 App. Div. 355; 179 N. Y. 556; Union Free School District v. Village of Glen Park, 109 App. Div. 414.) The city of New York has no legal interest in the subject-matter of this action, and no standing to participate as plaintiff in the maintenance of this suit in equity. (Halstead v. Mayor, etc., 5 Barb. 218; 3 N. Y. 530; People v. Ingersoll, 58 N. Y. 1; People v. Albany & S. R. R. Co., 57 N. Y. 161; City of Mt. Vernon v. New York Interurban Water Co., 115 App. Div. 658; City of Yonkers v. Federal S. R. Co., 136 App. Div. 701; County of Albany v. Hooker, 204 N. Y. 1; Powers v. Bergen, 6 N. Y. 358; Matter of O’Donnell, 221 N. Y. 203; Georgetown v. Alexandria Coal Co., 12 Pet. 91; City of New York v. Brooklyn Edison Company, N. Y. L. J., May 10, 1921.) The city of New York has an interest in the subject of this action. (Capital City G. L. Co. v. Des Moines, 72 Fed. Rep. 829; Reagan v. Farmers Loan & Trust Company, 154 U. S. 362; Covington & L. T. R. Co. v. Sanford, 164 U. S. 596; San Diego Land & Town Co. v. National City, 174 U. S. 739; Dillon on Mun. Corp. [5th ed.] § 39; Ghee v. N. U. Gas Co., 158 N. Y. 510; Matter of Quinby, 223 N. Y. 244; People v. O’Brien, 111 N. Y. 1; Milhau v. Sharp, 27 N. Y. 611; Story v. N. Y. El. Ry. Co., 90 N. Y. 122; Kane v. N. Y. El. Ry. Co., 125 N. Y. 165; Knickerbocker Ice Co. v. F. S. S. Ry. Co., 176 N. Y. 408.) The court at Special Term had the power to permit the city of New York to intervene as a party plaintiff in the case at bar. (Kelly v. Boettcher, 85 Fed. Rep. 55; Sioux City Terminal Ry. Co. v. Trust Co., 49 U. S. App. 528; 82 Fed. Rep. 124; Wood v. Draper, 24 Barb. 187; Shepard v. Manhattan Ry. Co., 117 N. Y. 442; Turner v. Conant, 18 Abb. N. C. 160; Sherman v. Parish, 53 N. Y. 483; Caldwell v. Taggart, 4 Pet. 202; Bohnet v. Mayor, etc., of New York, 150 N. Y. 279; Mooney v. N. Y. Elev. R. R. Co., 163 N. Y. 242; Bauer v. Dewey, 166 N. Y. 402, 424; Jamaica G. L. Co. v. Nixon, 110 Misc. Rep. 494.)