Jacob Goodman & Co. v. New York Telephone Co.

Froessel, J. These two actions challenge the propriety of the billing method in use by the New York Telephone Compan; (hereinafter called the Company) since 1950. At that time following hearings before the Public Service Commission (here inafter called the Commission), the Company extended its Nev York City dial system into Nassau and lower Westchestei counties, and thereafter, in pursuance of its duty to collect th( New York City sales tax, billed plaintiff, and other subscriber; similarly situated, 3% on concededly nontaxable calls dialed t( points outside the city limits as well as on admittedly taxable local city calls, due to the inability of the Company’s equipmen to differentiate between such calls. In the first action, the Company, under rule 106 of the Rules o: Civil Practice, and the City of New York (hereinafter called the City), under rule 212 of the Rules of Civil Practice, moved te dismiss plaintiff’s complaint. Both motions were granted with out leave to amend, and the Appellate Division affirmed. We al agree that this complaint was properly dismissed. [265] The second action was commenced on a new and broader complaint designed to remedy the deficiencies of the first complaint. In the present pleading, plaintiff sought by way of relief (1) a judgment pursuant to section 473 of the Civil Practice Act, declaring “ the rights and other legal relations ” of the parties; (2) to restrain the Company from charging 3% on suburban calls, from paying any of the challenged charges to the City, and to restrain the City from requiring payment of said charges; (3) to compel the Company to install new equipment, systems and procedure that will differentiate local from suburban calls; (4) for an accounting from defendants; and (5) for temporary njunctive relief and counsel fees. Both defendants again moved, this time under rules 106 and L07 of the Buies of Civil Practice, to dismiss plaintiff’s complaint, which motions Special Term denied. The Appellate Division unanimously reversed and dismissed the complaint under rule 106. It did so “ without prejudice to any action or proceeding plaintiff may be advised to institute after the Public Service Commission (on its own motion or on complaint), in the irst instance, has made a determination on the reasonableness, propriety, adequacy and sufficiency of the practices and services lerein involved ”. The Appellate Division, moreover, modified )n the law, a direction of Special Term that, while an injunction pendente lite would be “ denied ”, the “ status quo of the funds s to be maintained ” pending the determination of the issues n a trial; plaintiff’s motion was thus denied “ unqualifiedly ”, nstead of “ qualifiedly ”. We agree with the well-reasoned unanimous opinion of the Ippellate Division. The Company, in extending its dial system vith the approval of the Commission, was nevertheless mandated 3y the sales tax law of the City to collect sales taxes. Becognizng that to a comparatively small extent it was collecting excess iharges in its compliance with the sales tax law, the Company irranged to make appropriate refunds to subscribers upon ipplication. Plaintiff concedes that these moneys were not colected “ as tax ’’but only6 ‘ as an inevitable incident and coneomtant of its actual tax collection ”. There is thus in no event any )asis for an accounting decree here, since the Company, an icknowledged debtor, has at all times been willing to refund to [266] any subscriber-creditor upon simple application therefor the amount he claims to be due. Nor is there any justiciable controversy here. If, by plaintiff’s demand for declaratory judgment, the court is being asked merely to declare what both defendants admit, namely, that suburban calls are not taxable and that the Company has no right to keep any moneys not properly chargeable, the requisite “ actual controversy ” is lacking and no declaratory judgment may be had (New York Operators v. State Liq. Auth., 285 N. Y. 272, 276; James v. Alderton Dock Yards, 256 N. Y. 298, 305; 5 Carmody on New York Practice, § 1960; Borchard on Declaratory Judgments [2d ed.], pp. 33-48). The situation is thus quite unlike Kovarsky v. Brooklyn Union Gas Co. (279 N. Y. 304) for there the company claimed it had the right to collect and retain for itself service charges which were expressly prohibited by law, and there were none of the drastic consequences here involved. Furthermore, even if the declaration sought by plaintiff is to the effect that the Company may not utilize the particular system in question to collect 3% on all dialed calls and provide for refunds to subscribers who are thus overcharged, then the court below was entitled to refuse to entertain the application in its discretion under section 473 of the Civil Practice Act, and rule 212 of the Eules of Civil Practice — whether or not motion was made therefor — until after plaintiff first sought relief provided for elsewhere, specifically, before the Commission in a determination of 11 the reasonableness, propriety, adequacy and sufficiency of the practices and services herein involved ’ ’. Where such an 11 adequate remedy is already provided ”, and there is thus no real need for resorting to a declaratory judgment, the court, in its discretion, may decline to accept jurisdiction and deny such relief (Bareham v. City of Rochester, 246 N. Y. 140, 143; James v. Alderton Dock Yards, supra, p. 305). Plaintiff alleges that the Company could overcome its present inability to differentiate between local and suburban calls by installing new equipment, systems and procedures — a not inconsequential undertaking, and a matter that is'clearly within the jurisdiction of the Commission. The Appellate Division appropriately recognized that the latter body, created "by law even as are the courts, is in a much better position, with its superior [267] expert engineering staff and other facilities, to determine whether or not at the present time the Company may introduce a dial or other system which will differentiate local from suburban calls, and to make appropriate orders with far greater flexibility than the courts. The injunctive relief sought here is sweeping; it might seriously interfere with the Company’s duty to collect the sales tax concededly due; and the direction that the Company install an entirely new system, with all its consequences, is one that should not be made — at least until the Commission has acted. As to the restraint sought to be imposed upon the Company from paying to the City the amounts collected, this is an issue not presented by the pleadings and is not properly before us. Under all the circumstances, we are of the opinion that the Appellate Division not only exercised sound judgment, but it had the power to do what it did in the exercise of discretion, both as to declaratory and injunctive relief, with which we have no right to interfere. The judgments in both actions should be affirmed, without costs.