
    Gerald Morrell, Respondent, v. Brooklyn Borough Gas Company, Appellant.
    (No. 3.)
    
      Gas •companies — action to restrain charging, collecting or receiving from plaintiff for gas at rate fixed by public service commission on ground that such rate was excessive and void — demurrer to complaint sustained.
    
    
      Morrell v. Brooklyn Borough Gas Co., 195 App. Div. 899, reversed.
    (Argued June 3, 1921;
    decided July 14, 1921.)
    Appeal, by permission, from an order of the Appellate • Division of the Supreme Court in the second judicial department, entered January 7, 1921, which affirmed an order of Special Term overruling a demurrer to the complaint. The action sought to restrain the defendant from charging plaintiff or collecting or receiving from him the sum of one dollar and forty cents per 1,000 cubic, feet of gas used by him on the grounds that such rate was unlawful and unreasonable. The complaint alleged that the statutory maximum rate for defendant is eighty cents; that said statutory rate has been duly adjudged by the Supreme Court to be confiscatory, unconstitutional and void as against defendant; that, under the statute, the public service commission is without power to fix a rate for defendant in excess of eighty cents; that, nevertheless, the commission did by order fix the rate of. one dollar and forty cents for defendant; that said rate is unlawful and void and that said rate is also unreasonable, excessive and exorbitant.
    The following question was certified: “Does the complaint state facts sufficient to constitute a cause of action? ”
    
    
      Edward M. Bassett and Wilson W. Thompson for appellant.
    
      William L. Ransom, Robert E. Coulson and Colby E. Williams for Empire State Gas and Electric Association, amicus curice.
    
    
      Gerald Morrell, respondent, in person.
    'John P. O’Brien, Corporation Counsel (Judson Hyatt and James A. ..Honnelly of counsel), for City of New York, intervener.
   Crane, J.

For the reasons expressed in case No. 1 (same.title, 231 N. Y. 398), the order appealed from must be reversed, the demurrer sustained, with leave to plaintiff to plead over within twenty days on payment of costs, and the questions certified answered in the negative.

Hiscock, Ch. J., Hogan, Cardozo and Andrews, JJ., concur; Pound, J., absent; Chase, J., deceased.

Ordered accordingly. ■,  