Brooklyn Union Gas Co. v. Cashmore

Per Curiam. Whether the gas regulator involved is embraced within the terms of petitioner’s franchise, under petitioner’s contention that it is similar in function and scope to other devices heretofore treated as part of its distribution system, should not be decided upon the conflicting affidavits of the experts of the respective parties as to its nature and functions, and ■ the manner, necessity and feasibility of its proposed installation in the public streets, which on this record are questions of fact (Union Ry. Co. v. City of New York, 238 N. Y. 289, 297 et seq.). We do not regard Matter of Brooklyn Edison Co. v. Davidson (269 N. Y. 48) as necessarily decisive. An alternative order should issue under section 1295 of the Civil Practice Act (Matter of Westchester Elec. R. R. Co. v. City of Mt. Vernon, 237 N. Y. 199).