Opinion
Argued November 18, 1946
Decided January 16, 1947
Appeal from the Supreme Court, Appellate Division, First Department, EDER, J.
Millard E. Theodore for appellant.
John J. Bennett, Corporation Counsel ( Seymour B. Quel of counsel), for Police Commissioner of the City of New York, respondent. Irving W. Young, Edward F. Snydstrup, Jordan R. Bassett and Ralph W. Brown for New York Telephone Company, respondent.
Since the record justifies the conclusion that petitioner was engaged in conduct violative of section 986 of the Penal Law, it follows that he failed to establish — in this proceeding under article 78 of the Civil Practice Act — a clear legal right to the relief sought. Under the circumstances of this case, there was no warrant for compelling the telephone company to reinstate its service for petitioner.
In our view, however — though the Police Commissioner may have a deep and real interest in law enforcement — neither he nor any other law enforcement agent may, by reason thereof, be regarded as an indispensable, necessary or proper party or one permitted to intervene in a proceeding such as the present (Civ. Prac. Act, §§ 193, 193-b, 211).
Neither the Police Commissioner nor the Police Department is given any authority by statute to pass upon or regulate applications for telephone service, or to require a telephone company to withhold or discontinue its service. Approval of the commissioner is not a statutory condition precedent to the granting of the relief sought by appellant, and there is no warrant or need for any direction to him in this proceeding.
Whether or no service should be terminated or discontinued, is a decision that must be made by the telephone company. That power — as well as duty — rests with the public utility, and it may not delegate the one or avoid the other. True, the company is free to consult with the Police Department or with any other law enforcement agency, and may be guided in its action by the advice received. But whether the action is justified or warranted must be determined by the telephone company upon the facts presented. That being so, the telephone company is the only indispensable, necessary or proper party in a proceeding such as that before us.
The order should be affirmed, with costs to the respondent New York Telephone Company.
LOUGHRAN, Ch. J., LEWIS, DESMOND, THACHER, DYE and FULD, JJ., concur; CONWAY, J., taking no part.
Order affirmed, etc. [See 296 N.Y. 857.]