PROCEEDING under article 78 of the Civil Practice Act
(transferred to the Appellate Division of the Supreme Court in the third
judicial department by an order of the Supreme Court at Special Term, entered
in Albany County) to review a determination of respondents, constituting the
Public Service Commission of the State of New York, that appellant landlord is
to submeter or resell to nonresidential tenants electricity supplied by
respondent Consolidated Edison Company of New York, Inc., at a new building
constructed after July 31, 1951, at premises Nos. 761-765 Broadway, New York,
N.Y. Said order of Special Term (BOOKSTEIN, J.), entered April 12, 1954, in
Albany County, also denied the application of said landlord for an order
requiring that the commission annex to its answer in this review proceeding its
determinations on certain submetering applications made by other landlords; and
this landlord appeals therefrom.
Walter E. Warner, Jr., and F. Davis Gardner for appellant.
Joseph J. Doran, George H. Kenny and Charles R. Gibson for Benjamin F. Feinberg and others, constituting the Public Service Commission and another, respondents.
Arthur L. Webber and Colley E. Williams for Consolidated Edison Company of New York, Inc., respondent.
In 1951 the Public Service Commission terminated generally the practice of submetered resale of electric current by landlords to commercial tenants in New York City; but it allowed such resale to continue 'at premises' where it had been carried on July 31st of that year. Other questions arise in the proceeding before us, but the main one is to determine through what physical permutations in the structures on land the right to resell electricity 'at premises' survives.
The corporate petitioner Trustees of Sailors' Snug Harbor is the owner of extensive land in the city of New York. It petitioned the Public Service Commission on July 11, 1952, for a determination the effect of which would have been to permit the petitioner to resell electricity bought by it from Consolidated Edison Company to its tenant at a new structure to be constructed at 761-765 Broadway. The Public Service Commission ruled adversely to the application and this proceeding reviews that determination.
For some twenty-five years the petitioner had been selling to its tenants in the former structures at 761-765 Broadway electricity furnished it by the public utility and the buildings had been submetered for this purpose. It was doing this on July 31, 1951, the cutoff date of the exception to the 1951 regulation against resale of electricity by a nonutility landlord.
The record indicates that at these structures and in the rest of the block, which petitioner also owns, it was submetering and furnishing electricity in a total of some forty-two buildings.
We are directly concerned in this proceeding, however, only with
the former buildings and the new construction located at 761-765 Broadway. As
to the land and structures existing in July, 1951, it is conceded that the
petitioner had the right to continue to sell electricity to nonresidential
tenants under the exception in the commission's regulation.
The landlord has, however, entered into a lease of premises 761-765 Broadway, which requires the tenant to demolish all the structures at those street numbers and to erect an entirely new building which will contain, in the language of petitioner's brief, 'substantially increased commercial and residential space'. The lease contemplates the sale of electricity by the ...