New York State Electric & Gas Corp. v. City of Plattsburgh , 123 N.Y.S.2d 124 ( 1953 )

Appeal from an order of the Supreme Court, Warren County Special Term, which granted to plaintiff an injunction pendente lite, and denied defendants’ cross motion to dismiss the complaint herein. In the guise of a taxpayer plaintiff has brought an action to restrain the City of Plattsburgh and its- officials from prosecuting a condemnation proceeding to acquire a part of the electric utility system of the Eastern New York Power Corporation, on the grounds that the proposed acquisition is not necessary for the public use and the acts of the city and its officials relative thereto are ultra vires. In connection therewith plaintiff moved for a temporary injunction to restrain the defendants from taking any further steps in the condemnation proceeding until the determination of the action herein. Defendants made a cross motion to dismiss the plaintiff’s complaint on the grounds the court lacked jurisdiction of the subject matter and the complaint failed to state facts sufficient to constitute a cause of action. The Special Term held that it could not be summarily determined that the complaint did not state a cause of action, and pointed out that doubt exists as to whether the city’s delegated power of eminent domain is broad enough to permit condemnation of the property sought, especially in view of its location and other circumstances involved, such as the fact it is already devoted to a public use and the interests of other municipalities and corporate consumers may be involved. Defendants presented nothing either at Special Term or in this court to justify a conclusion that the court lacked jurisdiction of the subject matter of the action. Order affirmed, with $25 costs. Foster, P. J., Bergan, Coon and Halpern, JJ., concur; Imrie, J., taking no part. [See post, p. 846.]