McCormick v. Westchester Lighting Co.

142 Misc. 27, 252 N.Y.S. 849, 1931 N.Y. Misc. LEXIS 1740

Opinion

Close, J.

Upon a motion made by the plaintiff for a preliminary injunction I held that the schedule complained of was not an evasion of the statute forbidding a service charge, and denied the motion. (141 Misc. 261.)

The defendant now moves for judgment on the pleadings, and the plaintiff makes a similar motion.

When all is said and done, there is only a question of law involved. The defendant admits the truth of all the material allegations of fact in the pleading attacked, but not the legal conclusions drawn by the pleader, nor the pleader’s interpretation of the statutes involved.

As I have already held that the charge in question is a rate and not an evasion of the statute, it follows that the defendant’s motion must be granted. Settle order on notice.