N.Y. Public Service Law § 112: Judicial enforcement of rate-fixing orders of the commission

§ 112. Judicial enforcement of rate-fixing orders of the commission.

1. When a suit is brought in the federal district court praying for an

interlocutory injunction to restrain the enforcement of an order of the

public service commission or transit commission fixing the maximum

rates, fares, prices, charges or rentals to be charged and collected by

a person or corporation subject, under this chapter, to the jurisdiction

of the commission, the commission may bring an action in the appellate

division of the supreme court for an injunction restraining such person

or corporation from charging or collecting greater rates than those so

fixed by its said order, provided that the bringing of such action is

accompanied by a stay of proceedings, as herein provided, under such

order of the commission pending the determination of the action. Before

service of the summons, the commission shall exhibit to the court the

complaint and at the same time apply, without notice, for such stay.

If, in the judgment of the court, the complaint is sufficient on its

face to entitle the plaintiff to the relief prayed for, such stay must

be ordered by the court; and in case of a judgment or order thereafter,

on a motion on the pleadings, holding the complaint insufficient but

permitting amendment thereof, such stay shall continue during the period

allowed for such amendment. The complaint and the order for such stay

shall be filed and entered forthwith. The action is pending from the

time such order is granted; but not after the expiration of sixty days

therefrom unless, within that time the court shall have acquired

jurisdiction of the defendant, by service of summons or voluntary

appearance. Notice by the plaintiff's attorney of the granting of such

stay shall be served on the defendant when the summons is served, and in

the same manner. Forthwith upon the service of the summons and such

notice, proof of service thereof, in the manner prescribed by law and

rules for proof of service of a summons, shall be filed. Thereupon, the

clerk of the appellate division forthwith shall issue, and the counsel

to the commission shall transmit to such federal district court, the

certificate of such clerk setting forth, with respect to such action in

the appellate division, the title of the action, a copy of the prayer

for relief, as set forth in the complaint, a copy of the stay order, and

a statement that the papers filed in his office include proofs, made in

accordance with the laws of this state and court rules, of service of

the summons and of the notice required by this section to be served

therewith. An action under this section by the public service commission

shall be brought in the third department and by the transit commission

in the first department.

2. Original jurisdiction of such an action is hereby conferred upon

such appellate division of the supreme court. It may hear, try and

determine it and render judgment according to law, except that no order

for a temporary injunction against the defendant shall be granted.

Provisions of law relating to reference of issues or any of them, for

decision or report of findings of specific questions of fact, in an

action triable without a jury, shall apply. The action must be

prosecuted by the commission with diligence and good faith. If

application is made to the court to vacate such stay and notice of the

application, pursuant to federal law, is served upon the

attorney-general, he shall give immediate notice of such application,

and of his receipt of the notice therefor, to counsel for the

commission, but the attorney-general shall be entitled to participate

with such counsel in opposing the application, if he deems it advisable.

An appeal may be taken by the aggrieved party to the court of appeals

from the judgment of the appellate division in the manner and subject to

the limitations provided in the civil practice act.