
    City of Glen Cove, Respondent, v. Utilities and Industries Corporation et al., Appellants.
    Argued March 24, 1966;
    decided April 28, 1966.
    
      
      James F. Niehoff, William A. Shea and M. Rudolph Preuss for appellants.
    I. The Appellate Division’s decision rests upon an erroneous and unwarranted construction of section 24 of the Condemnation Law. The “ necessity ” required under section 24 establishes the limited application and unusual circumstances for the act’s invocation where change in use is contemplated, or the present use is inadequate or unsafe. (City of Utica v. Damiano, 22 Misc 2d 804; Matter of Niagara, Lock-port & Ontario Power Co., 111 App. Div. 686; Home Gas Co. v. Kuruc, 206 Misc. 130; Matter of Board of Educ. of Cent. School Dist. No. 3 v. Gorga, 13 Misc 2d 2; Central New England Ry. Co. v. Whittley, 159 App. Div. 468.) II. -Section 26 cannot be used to alter the meaning and construction of section 24. (Waterford Elec. Light Co. v. Reed, 103 App. Div. 103; Matter of City of New York [Harrison Ave.], 267 N. Y. 64; Matter of 100 Stevens Ave. Corp. v. Stark, 6 Misc 2d 43.) III. There is a total failure of any findings of fact (other than cut-off date) by both courts below to establish prejudice to the public requiring immediate possession under section 24. (Onondaga County Water Auth. v. New York Water Serv. Corp., 285 App. Div. 655; Matter of Municipal Housing Auth. of City of Schenectady [Levine], 284 App. Div. 162; Great Neck Water Auth. v. Citizens Water Supply Co., 12 N Y 2d 167; Matter of Great Neck Water Auth. v. Water Resources Comm., 22 A D 2d 78.) IV. Reversible error of law was committed by the courts below in refusing to follow or give any weight to the determination of the Public Service Commission that defendant’s water system was safe and adequate. (New York ex rel. Woodhaven v. Public Serv. Comm., 269 U. S. 244; People ex rel. New York & Queens Gas Co. v. McCall, 219 N. Y. 84, 245 U. S. 345; Matter of Evans v. Monaghan, 306 N. Y. 312.)
    
      
      Edward R. Garber, City Attorney (Jackson A. Dykman and Herman Meltzer of counsel), for respondent.
    I. This court will not pass upon questions of fact or discretion when, as in this case, the appeal is from an unanimous affirmance of a non-final order. (Langan v. First Trust & Deposit co., 296 N. Y. 60; Mencher v. Chesley, 297 N. Y. 94; The Styria, Scopinich v. Morgan, 186 U. S. 1; Langnes v. Green, 282 U. S. 531; Gittleman v. Feltman, 191 N. Y. 205.) II. The only question otherwise determinable in this court is the power of Special Term under section 24 of the Condemnation Law. (Columbus v. Mercantile Trust Co., 218 U. S. 645; Matter of City of New York v. New York Water Serv. Corp., 274 N. Y. 100; Matter of City of New York v. New York Water Serv. Corp., 249 App. Div. 787; Matter of New York City Housing Auth. v. Muller, 270 N. Y. 333.) III. Special .Term has power to grant the order from affirmance of which defendants appeal. (People ex rel. Manhattan Ry. Co. v. Barker, 152 N. Y. 417; People ex rel. McClelland v. Roberts, 148 N. Y. 360; People v. Long Is. R. R. Co., 194 N. Y. 130; Watertown Improvement & Constr. Co. v. City of Watertown, 145 Misc. 398; People ex rel. Collins v. Spicer, 99 N. Y. 225; Matter of Niagara, Lockport & Ontario Power Co., 111 App. Div. 686; Long Is. R. R. Co. v. Jones, 151 App. Div. 407; Cuglar v. Power Auth. of State of N. Y., 4 Misc 2d 879, 4 A D 2d 801, 3 N Y 2d 1006; People v. Fisher, 190 N. Y. 468; Saso v. State of New York, 20 Misc 2d 826.) IV. The inadequacy of the system and need of immediate improvement is confirmed by the statements of defendant utility to its stockholders and by the admission of its secretary and counsel before the Water Resources Commission. (Matter of New York Water Serv. Corp. v. Public Serv. Comm., 12 A D 2d 122, 13 A D 2d 610, 10 N Y 2d 705; People ex rel. Woodhaven Gas Light Co. v. Public Serv. Comm., 203 App. Div. 369, 236 N. Y. 530, 269 U. S. 244.) V. Defendants are amply protected by the deposit of $3,000,000. (Matter of Superintendent of Highways of Town of Frankfort, 194 Misc. 732; City of Utica v. Hanna, 249 N. Y. 26; City of White Plains v. Griffen, 169 Misc. 706, 255 App. Div. 1003.)
   Fuld, J.

The City of G-len Cove in 1961 commenced a proceeding, under the Condemnation Law, to condemn the plant and. property of defendant Utilities and Industries Corporation which supplies water to the city and its inhabitants. The issue of value has been on trial before commissioners of appraisal since May, 1962 — during which time over 1,500 pages of testimony have been taken and many exhibits received in evidence — and the hearings are still in progress. The plaintiff has moved, pursuant to section 24 of the Condemnation Law, for an order permitting it to enter immediately upon the property and to devote it temporarily to the public use specified in the condemnation petition, on the ground that any further delay would seriously prejudice the public interest. The court at Special Term granted the motion and directed the plaintiff to post $3,000,000 as the deposit required by section 24. The resulting order having been affirmed, the defendants appeal, by leave of the Appellate Division, on a certified question.

It is our conclusion that the courts below were thoroughly justified, in the exercise of discretion, in granting the relief sought. The record—■ consisting of affidavits and exhibits — tends to establish that, if the water service and facilities in Glen Cove are not already inadequate, they will soon become insufficient for fire protection and consumer demand by reason of the city’s rate of population growth and the water company’s expressed reluctance to expend the capital necessary for improvements. Certainly, this evidence of justifiable concern on the part of the city about its water supply is enough of a showing, under section 24, that ‘ the public interests will be prejudiced by delay.” (Cf. Matter of City of New York v. New York Water Serv. Corp., 274 N. Y. 100, 104.)

The fact that the plaintiff is authorized, by section 18 of the Condemnation Law, to seek a discontinuance of the condemnation proceeding’s does not offer a basis for reversal. There is no warrant for the fear that the defendants will not be fully protected if there is such an abandonment. As already noted, the plaintiff has made a deposit, pursuant to section 24, of $3,000,000, to be applied not only to the payment of any future award but also — to quote from the section—“ in case * * * the proceeding should be abandoned by the plaintiff, * * * to the payment of any damages which the defendant may have sustained by [the plaintiff’s] entry upon and use of his property.” In the light of such language, there can be no doubt that the plaintiff’s deposit is applicable to “ any damages ” which the defendants may suffer — as well as the cost and expenses of the proceeding’s — and, indeed, the plaintiff itself has acknowledged that this is so.

As to the other arguments advanced by the defendants, we would but note that we have examined them and find them without substance. •

The order appealed from should be affirmed, with costs, and the certified question answered in the affirmative.

Chief Judge Desmond and Judges Van Voorhis, Burke, Scileppi, Bergan and Keating concur.

Order affirmed, etc. 
      
      . Chemical Bank, New York Trust Company has been joined as a defendant because it holds a mortgage on the property.
     
      
      . Section 24 of the Condemnation Law, insofar as pertinent, reads as follows:
      “ When it appears to the satisfaction of the court at any stage of proceedings that the public interests will be prejudiced by delay, it may direct that the plaintiff be permitted to enter immediately upon the real property to be taken, and devote it temporarily to the public use specified in the petition, upon the deposit with the court of a sum to be fixed by the court * * * and such sum when so fixed and paid shall be applied, so far as it may be necessary for that purpose, to the payment of any award that may be made ® * * and, in ease the petition should be dismissed, or no award should be made, or the proceedings should be abandoned by the plaintiff, the court shall direct that the money so deposited, so far as it may be necessary, shall be applied to the payment of any damages which the defendant may have sustained by such entry upon and use of his property”.
     