Opinion
June 3, 1921.
Henry deForest Baldwin, for the appellant.
Elliot S. Benedict [ John P. O'Brien, Corporation Counsel, John F. O'Brien and Robert J. Culhane with him on the brief]; for the respondent.
Considering the peculiar situation of the parties, the majority of the court are of the view that a peremptory writ should not at first be issued. A serious difficulty has arisen as to compensation. Therefore, before the respondent should be coerced into obedience of these "executive orders" of the municipal commissioner of water supply, defendant should have a hearing regarding such "executive orders," and how far they commit the city for compensation for such new hydrants, and for the additional outlays involved in such a water supply for fire extinguishing purposes. Where liability for compensation is plain, so that the service may be fairly recompensed, such a peremptory writ may be a proper remedy of the municipality. But under the terms of the charter of Greater New York, the power of the commissioner alone to contract, and the obligation to pay for the new structural additions, appear in doubt. Accordingly, instead of a peremptory writ, an alternative writ of mandamus will be directed.
BLACKMAR, P.J., PUTNAM, KELLY and JAYCOX, JJ., concur; MILLS, J., votes to affirm upon the ground that the company has ample remedy under the statute, and a just public policy requires that the execution of the order shall not await the determination of the question of the fairness of the rate.
Order modified so as to direct an alternative writ of mandamus. Settle order on notice.