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.
Last modified: February 3, 2019