
    (June 13, 1939.)
    New York State Electric & Gas Corporation, Respondent, v. City of Plattsburgh, Leander A. Bouyea, as Mayor of Said City of Plattsburgh; Leander A. Bouyea, Redmond J. Holland, James G. O’Connell, Henry G. Raymond, John B. Light, Frank E. Behan and Cephas R. McCready, as Members of the Common Council of Said City of Plattsburgh; Susan E. Arthur, as City Chamberlain of Said City of Plattsburgh; and Walter J. Arbenger, as City Clerk of Said City of Plattsburgh, Appellants.
   Motion made, on consent, that the order made in the above-entitled action, and entered May 10, 1939, be amended nunc pro tunc to read as follows:

Ordered and Adjudged that the decretal paragraphs of the judgment so appealed from be and the same hereby are modified so as to read judgment and injunction order modified so as to permit the city to advertise for bids, and upon receipt of such bids to proceed with the construction of the Electric Power Project substantially in accordance with the plans and specifications therefor approved by the common council of the city as fixed in and by Local Law No. 1, at a cost not exceeding the present borrowing capacity of the city, amounting to $82,320.54, plus any increase in the borrowing capacity afforded by the paying off of existing indebtedness to the extent thereof prior to the time of letting contracts for the construction of the plant; and less any decrease in such borrowing capacity prior to such time; and as thus modified, the judgment is affirmed, without costs.

Further Ordered and Adjudged that findings of fact Nos. 6, 7, 17 and 19 contained in the decision, and findings of fact Nos. 6, 7, 17 and 19 of plaintiff’s proposed findings of fact be and they hereby are reversed, and the court disapproved conclusions of law Nos. 1, 3 and 4 of the decision and conclusions of law Nos. 1, 3 and 4 contained in plaintiff’s proposed findings.

Further Ordered that the following additional findings of fact and conclusions of law be, and the same hereby are, made and allowed in place of the findings of fact and conclusions of law so reversed and disallowed:

Findings of Fact

1. That the total assessed valuation of the real property in the city of Plattsburgh subject to taxation for the five years last preceding is as follows:

1935 ............................................ $5,343,823

1936 ............................................ 5,370,456

1937 .............................'............... 5,378,281

1938 ............................................ 5,419,572

1939 ............................................ 5,453,859

2. That the average thereof is the sum of $5,393,205.40; that ten per cent thereof, amounting to $539,320.54, constitutes the debt limit of the said city.

3. That on the 14th day of March, 1939, there were bonds of the city issued and outstanding amounting to $270,000, exclusive of water bonds and of sewer revenue bonds in the amount of $187,000; that provision has been made to retire $24,000 of the outstanding $270,000 of bonds during the year 1939.

4. That the sewer revenue bonds amounting to $187,000, plus the amount of $270,000, making a total indebtedness of $457,000, is the outstanding indebtedness of the city.

Conclusions of Law

1. That the sewer revenue bonds, amounting to $187,000, constitute a part of the outstanding indebtedness of the city, making its total indebtedness $457,000; that the debt limit of the city is $539,320.54, less the total outstanding indebtedness of $457,000, leaves the remaining borrowing capacity of the city as $82,320.54, plus any increase afforded by the paying off and retirement of existing indebtedness if and when made and to the extent thereof.

That the judgment heretofore entered in the office of the clerk of Clinton county be made to conform therewith.

Let judgment be entered accordingly.

Opinion

Per Curiam.

(Opinion was prepared by the late Justice Rhodes and reflects the sentiment of the majority.)

Hill, P. J., Bliss and Crapser, JJ., concur; Heffernan, J., dissents from the modification, and votes to affirm the judgment.

Motion granted.

Present — Hill, P. J., Crapser, Bliss, Heffernan and Sehenck, JJ. [See 168 Misc. 597; 256 App. Div. 732.]  