North Shore Electric Light and Power Company, Appellant, v. Port Jefferson Electric Light Company, Respondent

North Shore Electric Light and Power Company, Appellant, v. Port Jefferson Electric Light Company, Respondent. Second Department, May 29, 1912. Corporation — injunction to restrain public service corporation from exercising franchise. A domestic corporation organized to furnish light, heat and power and having a franchise, not exclusive, to operate in a certain town is not entitled to a temporary injunction restraining a similar corporation from invading its territory upon the ground that it has failed to get the consent of the Public Service Commission. This, because through its incorporation the defendant has the same franchise rights as the plaintiff, although by not securing the consent of the local authorities and of the Public Service Commission, it has failed to comply with the conditions necessary to the exercise of its franchise. Appeal by the plaintiff, the North Shore Electric Light and Power Company, from an order of the Supreme Court, made at the Suffolk Special Term and entered in the office of the clerk of the county of Suffolk on the 11th day of March, 1912, denying a motion for an injunction. George E. Darling, for the appellant. Thomas J. Ritch, Jr., for the respondent. [MAJORITY — Woodward, J.:] Woodward, J.: The plaintiff is a domestic corporation, organized under the, laws of the State of New York for the purpose of furnishing light, heat and power, and it is alleged that it was granted a franchise hy the town authorities of Brookhaven township on the 11th day of March, 1909, to erect its poles and string its wires upon the streets and avenues of said town, and that it subsequently secured the consent of the Public Service Commission as required hy law, and it" is sought in this action, in which the temporary injimction was granted, to restrain the defendant Port Jefferson Electric Light Company from invading the field covered by the plaintiff’s alleged franchise from the town authorities of Brookhaven. The complaint alleges that “ the plaintiff and the defendant are domestic corporations,” and it is. further alleged that the defendant was incorporated about the year 1893, and that without securing any franchise from the town authorities it has been doing business, and that it is now proposing, without the consent Of the Public Service Commission, to invade the territory in which the plaintiff is now engaged in furnishing current. On the return of an order to show cause the learned court at Special Term has vacated the injunction, and the plaintiff appeals from the order. The order appealed from should be affirmed. Both the plaintiff and the defendant have franchises, granted by the State, but neither of them has an exclusive franchise. The plaintiff concedes that it had not an exclusive franchise, in the sense that the defendant could not be given one, but it contends that the defendant, having failed to get the consent of the Public Service Commission, has no legal right to invade its field. The difficulty with the plaintiff’s position is that it fails to recognize that the defendant has exactly the same franchise rights that it has; the defendant has merely failed to comply with one of the conditions of its franchise; In other words, the defendant has a franchise from the State of New York to furnish electricity to consumers, subject to certain conditions, and this frahchise proceeds from its incorporation, and not from any supposed grant from the town authorities or the Public Service Commission. (Delaware, L. & W. R. R. Co. v. City of Buffalo, 158 N. Y. 478, 480; 65 Hun, 464; People v. Kerr, 27 N. Y. 188; Story v. N. Y. El. R. R. Co, 90 id. 122.) The very moment that the defendant corporation was organized it had its franchise to supply electric current "within its territory, though its right to exercise that franchise is made to depend on the performance of other conditions. As the plaintiff has no exclusive franchise while the defendant’s franchise is in existence, it can have no standing in an action to restrain the defendant from exercising its franchise. If the defendant attempts to exercise its franchise rights without complying with the conditions, there is a way, no doubt, of reaching the difficulty, but it is not open to the plaintiff through an equitable action, for the Legislature has never granted it any exclusive rights as against a corporation organized under the same laws and holding the same character of franchise. The order appealed from should be affirmed, with ten dollars costs and disbursements. Jenks, P. J., Herschberg, Burr and Rich, JJ., concurred. Order affirmed, with ten dollars costs and disbursements.