
    The Potsdam Electric Light and Power Company, Respondent, v. The Village of Potsdam and Others, Appellants.
    Third Department,
    May 2, 1906.
    Municipal corporation — when village enjoined from erecting- municipal lighting plant will not be allowed to open case to give further proof.
    When a village has been enjoined from issuing bonds to.pay for the erection of a municipal lighting plant on the ground that it had not received the certificate of authority from, the Commission of Gas and Electricity as required by section 11 of chapter 737 of the Laws of 1905, the cóurt'in.its discretion may deny á amotion by the village to open the. case to give-evidence, that ithad . partially exercised its- power to build such plant by -expending money thereon prior to the passage of such statute, when the only expenditure was the Unauthorized employment of an engineer to report on the feasibility of the project.
    Moreover, when the answer does not-allege that such moneys have been spent, such evidence would he inadmissible. _
    Appeal by the defendants, .The Tillage of Potsdam and others, from an order of the Supreme Court, made at the. Saratoga Special Term, and-entered in the office of the clerk of the county of St. Lawrence on the 23d day of December, 1905, denying the defendants’ motion -to reopen the' case and to give -fu'rthpr testimony.
    
      Theodore H. Swift and A. X. Parker, for the appellants.
    
      Lowen E. Ginn and Ledyard P. Hale, for the respondent.
   Chester, J.:

The action is brought by the plaintiff to restrain the defendants from the alleged illegal issue -of $40,0.00 of bonds, the proceeds of which the defendants^propose to’use in building an électric lighting plant to furnish the village of Potsdam and its inhabitants with light-. One of the grounds of complaint is that the defendants have not receive'd the certificate required by section 11 of chapter 737 of the" Laws of 1905, which section - provides that “ n.o municipality shall build", maintain and operate for other than municipal purposes any works or systems for the manufacture and supplying of gas or electricity for "lighting purposes without a certificate of authority granted by the Commission ” of Gas and Electricity.

We have at this term (113 App. Div.-) affirmed the judgment in favor of the plaintiff, on the opinion of the learned justice before (whom the case was tried at Special Term, (49 Misc. Pep. 18.)

In this opinion he said: “ Doubtless the statute does not apply' to any case where the power has been partially. exercised, as by the expenditure of money or property, or the incurring of any obligation properly and lawfully done in the carrying out of a then existing power to establish a lighting system.” Encouraged by this statement the appellants, before the entry of judgment, made a motion to reopen the case and give further evidence to establish, as they claimed, that the village of Potsdam had entefed upon the work of establishing a lighting plant prior to the passage of the act in question, and had expended a large sum of money in constructing bulkheads, gates and dams in improving a water power which it had purchased in 1889. From the denial of this motion the defendants have also "appealed.

The affidavits presented upon the motion made upon their face a very strong case for reopening, but the answering affidavits very clearly show that most of- the'alleged acts of and expenditures of money by the village authorities prior to the passage of the law were made in increasing the village water supply system and had no reference whatever to-a municipal lighting system.

Before the passage of the act the village, it is true, authorized .the expenditure of $300 for the purpose of investigating, by the aid of experts, the feasibility of constructing án electric lighting plant, and as a result of such expenditure a,recommendation was made to establish the plant, and also an electrical engineer was employed to prepare maps, plans and specifications for such plant. The president of the village' also claims that he entered into a contract with the engineer to prepare such maps and specifications and to have general charge of the construction of the plant, for which services the engineer was to have five per cent fees, or $2,000. There appears to have been no authority to contract with the engineer to have general charge of the work or to pay him therefor, but the trustees of the village passed resolution's accepting and adopting the maps, plans and specifications submitted by the engineer. The only expenditure of money before the passage óf the act has been for investigating the feasibility of constructing the lighting plant and for the payment of an engineer to make plans and. specifications therefor. Nothing in fact has been- done in constructing the work palled, for by the plans, and, therefore, the- case is not • fairly brought within the exception mentioned by the trial justice. More than this, it is entirely clear upon the affidavits used upon the motion that the village had entered into no contract or valid obligation of any kirffi looking to. the construction -of the plant recommended by the engineer and adopted by the board of trustees before the passage of the law, and, therefore, if the court had allowed the case to be reopened and all the evidence which the appellants desired had been introduced, the result would not have been-changed. . Moreover, the answer contains no allegation that the village had expended, any money or incurred any obligations toward or for the erection of a lighting plant prior to the passage of the law. The proposed evidence was, therefore, not material to any defense interposed., The court was entirely justified, therefore, nrexercising its discretion in-denying the motion to reopen the case.

The order should be affirmed, with ten dollars Costs and printing disbursements.' - ■

■ All concurred, except Parker, B. J., not voting.

Order affirmed, with ten dollars costs and' disburséments.  