Aluminum Co. of America v. Maltbie

45 N.E.2d 908, 289 N.Y. 357, 1942 N.Y. LEXIS 935

Opinion

Per Curiam.

Section 621 of the Conservation Law (Cons Laws, ch. 65) contains two separate grants of jurisdiction to the Public Service Commission. The first such grant empowers the Commission to fix the rates to be charged for power by the holder of a license issued pursuant to other sections of article 14 of the Conservation Law. Since The Niagara Falls Power Company is not, at least for present purposes, a “ licensee ” under that article (see Water Power & Control Comm. v. Niagara Falls Power Co., 289 N. Y. 353, decided herewith) the Public Service Commission must rely — for authority to fix the rates to be charged by the Power Company to the Aluminiun Company — on the second grant of jurisdiction to the Commission contained in section 621 of the Conservation Law. That second grant confers jurisdiction to fix rates to be charged by any person, firm or corporation for furnishing power “ generated wholly or partly by the use of water in which the state has a proprietary right or interest.” The Aluminum Company, it plainly appears, is not a customer purchasing from the Power Company electrical power produced by the latter, but is a lessee from the Power Company of real property, with appurtenant and expressly granted rights in the lessee to take mechanical power from the hydraulic equipment of the Power Company. We hold that neither section 621 of the Conservation Law nor article 4 of the Public Service Law (Cons. Laws, ch. 48) shows any legislative intent to cover a situation where the power is produced pursuant to a lease agreement and under the special circumstances of the case at bar. It is thus unnecessary to consider or define the mean ing of the above-quoted language of section 621: “ water in which the state has a proprietary right or interest.”

The order of the Appellate Division should be affirmed, without costs.

Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ., concur.

Order affirmed.