App. Div.] Second Department, July, 1913. Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 6th day of May, 1913, overruling its demurrer to the complaint. Arthur E. Walradt [Edwin J. Tetlow with him on the brief], for the appellant. Frank A. Bennett, for the respondent. THOMAS, J.: In 1898 the defendant and the city of Mount Vernon made an agreement whereby franchises in the street were accorded to the former, who agreed to furnish water for the streets and for the use of the inhabitants at stated rates for the period of ten years, and, while the contract has expired, the defendant continues to furnish water on the same terms and proposes to do so until the expiration of the present year, when it threatens to sever the connections to the plaintiff and some 5,000 customers, unless they severally sign an agreement to pay the existing rate increased thirty-three and one-third per cent. The plaintiff in this action would compel defendant to furnish water at the rate fixed by the expired contract or at such rate as the court may determine is reasonable, and to enjoin the discontinuance of the service. The allegations as to the contract are ineffective except as showing the history of the service and the present terms of it. The question presented by appellant is whether the court can fix a rate for future service, anticipating thereby the establishment of an unjust price by the company. That is not the essential inquiry. It is a legislative function to fix charges, but the courts are enabled to prevent the recovery of an unjust rate where none has been established by authority. Hence the defendant urges that the customer's remedy is to defend against the rate, or pay it and recover the unjust excess, and that a court of equity may intervene pending such litigation to enjoin severance of the connection, or that by mandamus the performance of a legal duty may be enforced. But the defendant has established the rate, demanded submission to it, and threatened exclusion from the supply unless the parties stipulate to accept the proffered terms. Under the allegations in the complaint, Second Department, July, 1913. [Vol. 158. this is threatened oppression by the defendant, and, while this court may not prematurely state a maximum rate, it can prevent the defendant from ousting all the inhabitants of the city from their present lawful water supply unless they submit to an extortionate demand, if such should be found. The inhabitants are entitled to the water; they have been established in the physical connection of their houses with defendant's plants, and a court of equity can prevent the defendant from sundering the relation, and from withholding water from the community, even while proceedings at law may be initiated. If in such action the court cannot forecast rates that may be charged it can state what rate cannot be charged under menace of discontinuing the service. The defendant's wrongful act is that it threatens to disestablish the takers in their lawful status unless they contractually submit to an imposition, if it shall be so ascertained. The appellant urges that the power to fix rates which a public service corporation may charge resides in the Legislature. (Village of Saratoga Springs v. Saratoga Gas, etc., Co., 191 N. Y. 123, 143.) "It is one thing to inquire whether the rates which have been charged and collected are reasonable that is a judicial act; but an entirely different thing to prescribe rates which shall be charged in the future—that is a legislative act," as Mr. Justice BREWER said in Interstate Commerce Commission v. Railway Co. (167 U. S. 479, 499, 511). The matter is fully discussed in Madison v. Madison Gas & Electric Co. (129 Wis. 249; 8 L. R. A. [N. S.] 529). But if the court cannot fix rates for the future, it can declare whether rates enforced, or sought to be enforced, are just, and a court of equity is not constrained to forbear until an entire community is deprived of water, and all house connections with the water plant have been swept away. The court does not wait until a forest has been wrongfully felled if a survey foretelling the act is in progress. Unjust exaction justifies judicial interference; threatened interference with the connection and the supply, unless there be submission to such exaction, is equivalent to it. For the purpose outlined the action is maintainable. But may the plaintiff unite as parties plaintiff other customers? Is there a common right infringed by a App. Div.] Second Department, July, 1913. wrongful act affecting all? "Where the question is one of a common or general interest of many persons; or where the persons, who might be made parties, are very numerous, and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of all." (Code Civ. Proc. § 448.) The right to the use of the streets flows from the municipality, and the defendant owes to the inhabitants, because they are such, the duty of furnishing water at a reasonable price. It is true that each right is several in its exercise, but it springs from a duty to the community, and the defendant threatens each one with a breach of duty, not only to him, but to the community and to the State. It would seem to be a fair occasion to invoke the statute. The interlocutory judgment is affirmed, with costs, with leave to defendant to answer upon payment of costs within twenty days after notice of entry of judgment herein. JENKS, P. J., CARR and RICH, JJ., concurred; BURR, J., concurred upon the ground that the allegation in the complaint that the rates sought to be charged are excessive and unreasonable must be deemed admitted by the demurrer. Interlocutory judgment affirmed, with costs, with leave to defendant to answer upon payment of costs within twenty days after notice of entry of judgment herein. JAMES N. BUTTERLY, Appellant, v. JAMES A. DEERING, Respondent. Second Department, July 25, 1913. Reference - consent in open court-order reversing judgment of referee, without provision as to method of new trial-authority of court to order trial of separate issues by jury, under section 967 of the Code of Civil Procedure. Where, on a motion for the appointment of a referee to hear and determine the issues, counsel consent in open court to an order of reference, and an order reversing a judgment of the referee in favor of the plaintiff is silent as to the method of a new trial, the court is without power to grant a motion by the plaintiff under section 967 of the Code of Civil Procedure, for a trial by jury of part of the issues. Second Department, July, 1913. [Vol. 158. APPEAL by the plaintiff, James N. Butterly, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 26th day of December, 1912, denying plaintiff's motion for a trial by jury of one of the issues. George W. Wingate [Frank Moss with him on the brief], for the appellant. William N. Dykman [James A. Deering with him on the brief], for the respondent. CARR, J.: In this action the plaintiff moved for the appointment of a referee to hear and determine the issues. On the return day of the motion the defendant appeared in court by counsel, who in open court consented to an order of reference. The court thereupon granted the motion, and appointed a referee to hear and determine the issues. After a trial before the referee judgment was entered in favor of the plaintiff. This judg ment was reversed in this court and a new trial granted, a majority of the court being of opinion that the judgment was against the weight of evidence. (Butterly v. Deering, 152 App. Div. 777.) The order of reversal was silent as to the method of the new trial. The plaintiff thereupon made a motion under section 967 of the Code of Civil Procedure for a trial before a jury of the separate issue as to whether the contract alleged in the complaint as having been made between the plaintiff and defendant, and upon which the plaintiff bases his right of recovery, was in fact made, and reserving the trial as to question of performance, which necessarily involved the examination of a long account. This motion was denied and the plaintiff has appealed. If section 1011 of the Code of Civil Procedure applies, then the order was made properly, as the court was without power to grant the motion. (Brown v. Root Manufacturing Co., 148 N. Y. 294; Brooklyn Heights R. R. Co. v. Brooklyn City R. R. Co., 105 App. Div. 88.) It is true that in this case there was not a written stipulation for a reference signed by the respective counsel, but a consent made in open court has been held equivalent to the written stipulation referred to in section 1011 of the Code of Civil App. Div.] Second Department, July, 1913. Procedure. (Knowlton v. Atkins, 134 N. Y. 313; Lennon v. Smith, 18 N. Y. Supp. 213.) We do not feel at liberty to disregard the authorities just cited, and, therefore, we affirm the order appealed from, with ten dollars costs and disbursements, on the distinct ground that the court was without power to grant the motion, and not on the ground of discretion. JENKS, P. J., BURR, RICH and STAPLETON, JJ., concurred. Order affirmed, with ten dollars costs and disbursements. THE CITY OF NEW YORK, Respondent, v. AUGUSTUS D. KELSEY, Appellant. Second Department, July 25, 1913. Constitutional law-Laws of 1868, chapter 591, preventing use of land near city water supply for burial purposes — injunction. The provisions of chapter 591 of the Laws of 1868, forbidding the establishment of public cemeteries within one-half mile from any reservoir or pond forming a part of the water supply system of the former city of Brooklyn, are constitutional, and a judgment in a suit by the city of New York to enjoin the use of lands contrary to said statute should be affirmed. APPEAL by the defendant, Augustus D. Kelsey, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Nassau on the 5th day of March, 1913, upon the decision of the court after a trial at the Nassau Special Term. Thomas Young [Francis G. Hooley and John Lyon with him on the brief], for the appellant. James D. Bell [John B. Shanahan and Archibald R. Watson with him on the brief], for the respondent. CARR, J.: This is an appeal from a judgment of the Special Term in Nassau county, decreeing a permanent injunction against the |