New York State Electric & Gas Corp. v. City of Plattsburgh

254 A.D. 628, 3 N.Y.S.2d 122, 1938 N.Y. App. Div. LEXIS 6769

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 25, 1938
• Status: Published

Opinion

This is an appeal from an order of a justice of the Supreme Court granted January 31,1938, restraining the defendants, during the pendency of this action, from issuing certain bonds for the construction of a municipal electric plant and system, from proceeding with an agreement with the Federal Emergency Administration of Public Works in obtaining funds for such construction and for the purchase of the bonds, and from constructing the plant. The plaintiff owns and operates an electric distribution system in the city of Plattsburgh. It here alleges that the proposed bond issue will violate the New York State constitutional debt limit; and that the sale of the bonds and construction of the plant will constitute waste. No answer has been made by the defendants. This action raises serious questions, of great import to both parties. It involves the constitutionality of certain statutes. The affidavits are incomplete as to the facts and the issues are not yet framed by the service of the answer. An early final determination should be had. This can be had only by the trial of the action and should not be made on incomplete affidavits only. The order appealed from should be modified by making the continuance of the temporary injunction contingent upon the plaintiff being ready for the trial of the action at the first Trial Term after issue is joined and if the action is not seasonably disposed of application for the dissolution of the injunction may be made to this court, and as so modified the order is affirmed, without costs. The motion to dismiss this appeal is denied, without costs. Hill, P. J., Rhodes, MeNamee, Crapser and Bliss, JJ., concur.