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and without authority of law, with intent materially to assist each other, against all opposition, in putting their design into execution in a violent manner, whether the object is lawful or unlawful: See the note to State v. Jenkins, 94 Am. Dec. 136; Spies v. People, 122 Ill. 1, 3 Am. St. Rep. 320; Higgins v. Minagham, 78 Wis. 472, 23 Am. St. Rep. 428. As to the duty of the state to interfere to suppress riots, see Commissioners v. Church, 62 Ohio St. 318, 78 Am. St. Rep. 718; Chicago v. Chicago League Ball Club, 196 Ill. 54, 89 Am. St. Rep. 243; Chicago v. Manhattan Cement Co., 178 Ill. 372, 69 Am. St. Rep. 321. These decisions also discuss the liability of cities for private property destroyed by mobs and rioters.

BROOKLYN UNION GAS COMPANY v. CITY OF NEW

YORK.

[188 N. Y. 334, 81 N. E. 141.]

STATUTES Respecting the Price of Illuminating Gas, Construction of.-Under a statute providing that in cities of a specified class no corporation or person shall charge for illuminating gas to exceed a price designated per thousand feet, the maximum price so fixed must be deemed reasonable, and the city, in an action against it for gas furnished to it, is not entitled to defend on the ground that the price charged, though less than that thus specified, is not reasonable. (p. 870.)

Action against the defendant to recover a sum alleged to be due for illuminating gas furnished it by the plaintiff. An application having been made for permission to inspect the books, records and documents of the plaintiff company and for an inventory of its plant, and the court having denied such application, this appeal was prosecuted from the order of denial.

William B. Ellison, corporation counsel, Theodore Connoly and William B. Burr, for the appellant.

William N. Dykman, for the respondent.

336 O'BRIEN, J. This action was brought by the plaintiff against the city of New York to recover the sum of over two hundred and sixty-two thousand dollars for illuminating gas alleged to have been furnished to the defendant by the plaintiff for the purpose of lighting the public buildings ard streets of the city. The price charged was at the rate of

ninety cents per thousand cubic feet, and it is alleged on the part of the defendant that this was an excessive and unreasonable charge, considering the expense of producing it and allowing the plaintiff a reasonable profit. An inspection of the pleading discloses that this is the main, if not the only, defense to the action.

The gas was furnished, as is alleged, between the first day of January, 1903, and the sixteenth day of March, 1904. For several years prior thereto the plaintiff had supplied gas to the city, which service was rendered under written yearly contracts made through public lettings conducted under the provisions of the charter. A contract of that nature was made between the plaintiff and defendant for the year 1902, which expired January 1, 1903. In December, 1902, the 337 proper municipal officer, acting under the provisions of the charter, advertised for bids for the supply of gas for the year beginning January 1, 1903, and ending December 31st of that year. The plaintiff made proposals in writing, wherein was specified the price, and submitted its bid according to the advertisement. Its bid was ninety cents per thousand cubic feet, but when the bid was opened a controversy seems to have arisen between the plaintiff and some of the municipal offiers in relation to the price, and the result was that the bid was neither accepted nor rejected until about the eighth day of December, 1903, when the plaintiff was notified that the bids were rejected. No further attempt was made by the city to enter into a formal contract for the supply of gas, but it still continued to use and the plaintiff to supply the gas as before. This resulted in the controversy in question.

In February, 1906, the defendant presented a petition to the court praying that an order be granted allowing the defendant to make an inspection and inventory of the plaintiff's plant, an examination of its books, records and documents showing the cost of coal or other raw material, the wages and salaries paid, the amount of moneys invested and the present value of its plant, and all other items of expenditures and receipts pertaining to the cost of production and distribution of gas during the period in question, it being alleged that such facts were necessary as bearing on the question of the reasonableness of the charge. The court at special term denied the application, and the order was affirmed at the

appellate division, but permission was given to appeal to this court, and two questions were certified for our consideration, viz.:

"1. In this action can the defendant question the lawfulness of the price charged for the gas furnished and consumed by it on the ground that such price is in excess of the fair and reasonable value?"

"2. Is the actual cost to the plaintiff of the production and distribution of the gas a material fact in the controversy?” The answers to the questions certified depend upon the

338

construction of a statute, the material part of which is as follows: "In any city in this state having a population of eight hundred thousand or over, no corporation or person shall charge for illuminating gas a sum to exceed one dollar and twenty-five cents per thousand feet, and such gas shail have an illuminating power of not less than twenty sperm candles, or six to the pound, and burning at the rate of one hundred and twenty grains of spermaceti per hour, tested at a distance of not less than one mile from the place of manufacture, by a burner consuming five cubic feet of gas per hour, and shall comply with the standard of purity now or hereafter established by law": Transportation Corporations Law, Laws 1890, c. 566, sec. 70.

The learned corporation counsel contends that this statute simply prescribes a maximum figure beyond which it is not lawful for the plaintiff to pass in presenting bills for gas; that it does not preclude the city in this action from contesting the question whether the price charged is reasonable or not, and that the city is entitled to show, if it can, by the proposed examination that the reasonable price of gas is much less than ninety cents per thousand cubic feet. We do not think that this contention can be sustained. Counsel have presented elaborate arguments on this question and numerous authorities have been cited, which need not be referred to. The question, we think, is a very simple one. The plaintiff is seeking to recover for gas furnished at the rate of ninety cents per thousand cubic feet, while the statute permitted it to charge more, if it thought wise to do so in a business sense. The legislature intended and did by this statute regulate the price of gas in the borough of Brooklyn. It established a maximum price which might be charged. Whatever price the legislature permitted the plaintiff to charge must

be deemed to be reasonable, and, hence, a charge of any sum below the maximum of one dollar and twenty-five cents must be deemed and taken to be a reasonable charge. When the price of a commodity is established by law, it is not competent for the party purchasing it to resist payment on the ground 839 that the law has permitted the seller to make an unreasonable charge. Hence, when the plaintiff furnished and the defendant received and used the gas, the latter was precluded by statute from raising any controversy such as this with respect to the reasonableness of the charge; in other words, the charge must, in view of the statute, be deemed reasonable.

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

Cullen, C. J., Edward T. Bartlett, Haight, Vann, Hiscock and Chase, JJ., concur.

Order affirmed.

The Business of Supplying Gas to meet the demands of a community is subject to public regulation in the matter of fixing rates of compensation. And one of the conditions for the exercise of the privilege of conducting a gas business under legislative grant is that in the absence of legislative prescription restricting the rate of compensation for the service rendered, the grant carries by implication the obligation to furnish it at a reasonable rate and price: Madison v. Madison Gas etc. Co., 129 Wis. 249, 116 Am. St. Rep. 944.

WANSER v. DE NYSE.

[188 N. Y. 378, 80 N. E. 1088.]

JUDICIAL SALES, Title Presumed to be Sold at.-A person who, in good faith, bids for real property at a judicial sale where the particular interest offered is not expressly stated, has a right to assume that the title is marketable, and that he will receive a conveyance of the fee. (p. 872.)

JUDICIAL SALES-Purchaser, When Entitled to be Released for Defect in Title.-One who in good faith bids for real property at a judicial sale, where no particular interest or title is expressly offered, is entitled to be released from his bid on showing that the title is not in fee or is not marketable. (p. 873.)

VENDOR AND PURCHASER.-Marketable Title, What is not. Title is not marketable if it will not be accepted by an ordinarily prudent man when the property is again offered for sale or as security for a loan. (p. 873.)

JUDICIAL SALES-Practice in Compelling Purchaser to Comply with His Bid.-The fact that a person bids upon property at a judicial sale and signs the terms of the sale, by which he agrees to complete his purchase within a specified time, is sufficient on which to move for an order compelling him to perform his agreement. If answering affidavits are read claiming to show that the title is defective, the court may allow the production of such further affidavits relating to title as may be necessary or desirable to present the facts, and the rights of the parties may be fully protected by directing when and upon what conditions further affidavits may be filed. (p. 875.)

SPECIFIC PERFORMANCE.-Adverse Possession of Land may be Sufficient to make a title which the purchaser at a judicial sale should be compelled to accept, but the evidence of such possession must be clear. (p. 876.)

JUDICIAL SALES-Marketable Title, When not so Made as to Require the Purchaser to Complete the Sale.-Where property is sold at a judicial sale, and on motion to compel the purchaser to comply with his bid it appears that, more than seventy years before, one F. O. was the owner of the property, and that, about forty years prior to the sale, a conveyance was procured from thirty-nine persons, who were then assumed to be his heirs, but there is no direct evidence of his death nor the heirship of such persons, and no sufficient evidence of adverse possession, the purchaser cannot be compelled to comply with his purchase. (pp. 876, 877.)

Appeal from an order of the appellate division affirming an order made by the trial court directing the appellant to complete his purchase of real property sold at a partition sale.

A. P. Bachman and John Oscar Ball, for the appellant. Washington Sackmann and Edmund C. Viemeister, for the respondent.

380 CHASE, J. In this state a person who, in good faith, bids upon real property at a judicial sale where the particular interest offered is not expressly stated has a right to assume that he is to receive a conveyance of the fee, and that the title to such real property is marketable. In case the title to such real property is not marketable, such fact is a defense to a motion to compel the purchaser to complete his purchase or to any other proceeding or action based upon such bid: New York Security etc. Co. v. Schoenberg, 87 App. Div. 262, 84 N. Y. Supp. 359; affirmed, 177 N. Y. 556, 69 N. E. 1128; Mott v. Mott, 68 N. Y. 246; Crouter v. Crouter, 133 N. Y. 55, 30 N. E. 726; Cambrelleng v. Purton, 124 N. Y. 610, 26 N. E. 907; Jordan v. Poillon, 77 N. Y. 518; Miller v.

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