Kings County Lighting Company v. City of New York

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered December 30, 1916, which affirmed an order of Special Term sustaining demurrers to separate defenses set up in the answer. The action is to recover for gas furnished the city for street lighting and for use in public buildings in the thirtieth ward of the borough of Brooklyn, formerly the town of New Utrecht, under a contract theretofore entered into with the authorities of said town. The answer set up as a separate defense that by an act of the legislature, which becamealaw on June 3, 1905, which is known as chapter 736 of the Laws of 1905, the legislature of the state fixed the price of illuminating gas to be furnished and sold by the plaintiff to the city on and after July 1, 1905, at a sum hot to exceed seventy-five cents per 1,000 cubic feet of gas, and that the price demanded by the plaintiff for the gas supplied to the city is in excess of that fixed hy the said act; alleged the same facts for a partial defense, and for a third and partial defense alleged the enactment of chapter 136 of the Laws of 1905, fixing the price of gas at seventy-five cents per 1,000 cubic feet, and further alleged that the said price of seventy-five cents per 1,000 cubic feet is the reasonable value of the gas furnished to the city, and that the price for gas which the city is required to pay under the alleged contract is more than the reasonable value of such gas. The following questions were certified: “ 1. Is the first separate defense contained in the answer of defendant to plaintiff’s first cause of action insufficient in law upon the face thereof ? 2. Is the second separate and partial defense contained in the answer of the defendant to plaintiff’s first cause of action insufficient in law upon the face thereof ? 3. Is the third separate and partial defense contained in the answer of the defendant to plaintiff’s first cause of action insufficient in law upon the face thereof % ”