The restriction upon the authority of a gas and electric light company to issue stock and bonds without the approval of the proper public service commission was enacted to protect the public who may invest in such securities, and also to some extent to protect the public so far as it might become a patron of the company, for everyone knows that, when the question of rates or price arises, the appeal is always strenuously made that the holders of the securities who have invested in the same should be allowed an adequate return on their investment, though securities may not represent a real investment of capital or outlay in the construction or maintenance of the company's plant. In People ex rel. Delaware & H. Co. v. Stevens, 197 N. Y. 1, 9, 90 N. E. 60, 62, Judge Haight, writing for this court, said: "We understand that the paramount purpose of the enactment of the public service commissions law was the protection and enforcement of the rights of the public. . . . For a generation or more, the public has been frequently inposed upon by the issues of stocks and bonds of public service corporations for improper purposes, without actual consideration therefor, by company officers seeking to enrich themselves at the expense of innocent and confiding investors. One of the legislative purposes in the enactment of this statute was to correct this evil by enabling the commission to prevent the issue of such stock and bonds, if, upon an investigation of the facts, it is found that they were not for the purposes of the corporation enumerated by the statute and reasonably required therefor." sion made an order granting leave to issue | counsel for the respondent: "To allow stock and bonds. The order of the com- securities to be issued, and then not to permission grants merely this authority, and mit the proceeds to be used in the business nothing more. The present appellant there- of the company, would be an inane and upon sued out a writ of certiorari, and the futile act; and it would also be practising determination of the commission was con- a gross deception on investors who might firmed by the appellate division (151 App. have purchased such securities relying upon Div. 832, 136 N. Y. Supp. 1031), and from the order of the commission." Assuming, the order of the appellate division, this for the argument, the correctness of this appeal is taken. position, the question remains, How was the appellant made the champion of the rights of the investing public so as to give it a standing in court to appeal from what it deems an erroneous decree? It does not propose to invest in the securities of the Long Acre Company, or to become a patron of its services. If the appellant can prosecute an appeal because the order of the appellate division may injuriously affect the public, then any or all of the 9,000,000 citizens of this state, or, at least, all the adults, have the same right. The real object of the appellant is to cripple a proposed competitor by rendering it difficult for the latter to obtain funds to prosecute its enterprise. In this respect it is interested in the result of this proceeding; but it is not such an interest as the law recognizes. It often occurs that the question which determines a litigation in court is of vital importance to other parties who have controversies depending upon the determination of the same question. At such times it is the common practice of the court to allow such third parties to file briefs on the argument of the case, so that their rights may not practically, though not in the eyes of the law, be decided without their having an opportunity to be heard. But such persons cannot become parties to the suit. Though they should be heard at the appellate division, it would give none of them any right to appeal from an adverse decision. On the argument it was conceded that no decision that we make in this case would be conclusive on the appellant in any litigation that may arise between the two companies; and, apart from any concession of counsel, the proposition is clear. We have already decided, on an application of the Long Acre Company to compel the subway company to assign space in the subway for the Long Acre Company's wires, that that company had a valid franchise and the right to furnish electric light. Re Long Acre Electric Light & P. Co. 188 N. Y. 361, 80 N. E. 1101. Yet, even the counsel for the respondent does not claim that that decision is conclusive as to the rights of the company when challenged in this proceeding, while the counsel for the appellant claims that the true facts were not made to appear in the mandamus litigation. I think, therefore, that we should not strain That this view, that the statutory provision was intended to protect the investing public, is correct, is made clear by the terms of the provision itself. The company does not require the consent of the commission to enable it to borrow money or incur debt, unless it issues therefor securities of some kind, stock, bonds, or evidences of indebtedness, and in the case of evidences of indebtedness, only when they are payable more than twelve months after date. Therefore, if the Long Acre Company was to borrow the money on open account or on short-term notes, no consent would be necessary. It is said by the learned to assume jurisdiction of an appeal and | N. Y. 528, 47 N. E. 787; Re Long Acre render a decision which will have little Electric Light & P. Co. supra); and the practical effect when rendered. If we franchise of a railroad company cannot be should affirm the order appealed from, it repealed or abrogated by the legislature would not preclude the people of the state (People v. O'Brien, 111 N. Y. 1, 2 L.R.A. or the officials of the city of New York, or, 255, 7 Am. St. Rep. 684, 18 N. E. 692), as already said, the appellant, from ques- though doubtless it can be forfeited for tioning the existence or the validity of the nonuser in a judicial proceeding. People Long Acre Company's franchise; while, if v. Broadway R. Co. 126 N. Y. 29, 26 N. E. we should reverse the order, it would not 961. In People ex rel. Third Ave. R. Co. preclude the Long Acre Company from v. Public Service Commission, 203 N. Y. borrowing money, so long as it did not issue 299, 96 N. E. 1011, we held that, in the bonds or securities payable more than a case of a company succeeding to the title year after date in acknowledgment of it. of a valid railway franchise, no consent of of the public service commission could be made a prerequisite to the right of the company to exercise the franchise. It is urged, but not by counsel for the appellant, that the decision of the public service commission would conclude the appellant in any litigation that might hereafter arise between the parties on the question of the possession by the respondent of a valid franchise to furnish electric light and power. As already said, it was admitted by the appellant, on the argument, that the decision would not have that effect. The reason for that position to me seems plain. A franchise to furnish electric light and power and lay conduits for that purpose in the city streets is property, the same as other property, though it is doubtless liable to forfeiture by judicial decree for nonuser or abandonment. People v. Atlantic Ave. R. Co. 125 N. Y. 513, 26 N. E. 622; People v. Broadway R. Co. 126 N. Y. 29, 26 N. E. 961. As between it and the appellant, the respondent has the light to have the question of its original possession of such a franchise, or its subsequent forfeiture or loss, determined in the ordi At the time this proceeding was instituted, § 68 of the public service act required any gas or electrical corporation, before beginning construction or exercising any right or privilege under any franchise thereafter granted, or heretofore granted, but not actually exercised, to obtain the approval of the public service commission. In 1910 (chapter 480) this statute was amended so as to provide: "The commission within whose district such construction is to be made, or within whose district such right, privilege, or franchise is to be exercised, shall have power to grant the permission and approval herein specified, whenever it shall, after due hearing, determine that such construction or such exercise of the right, privilege, or franchise is necessary or convenient for the public service." Consol. Laws 1910, chap. 48. To an application to exercise the franchise made under this section as amended, doubtless the appellant would be a proper party, if it saw fit to intervene. By the amendment, the status of gas and electric companies is made similar to that of railroad companies, as to which we have held that an existing company has a standing to oppose the grant-nary courts of justice in this state in the ing of a franchise to a competing company. People ex rel. New York C. & H. R. R. Co. v. Public Service Commission, 195 N. Y. 157, 88 N. E. 261. It is now suggested that the order made by the commission, though confined in terms solely to a grant of authority to issue stocks and bonds, necessarily imports the grant of a permission under § 68, as amended in 1910. The contention seems to me wholly groundless. The petitioner did not ask for any consent to commence work, but claimed to have a valid franchise beyond the power of the commission to abrogate. The appellate division held that the amendment of 1910 had no application to the case, because the proceeding had been commenced before its enactment. It seems that the franchise of a gas or electric light company, when duly granted, is property, the same as the franchise of a railroad company (People ex rel. Woodhaven Gaslight Co. v. Deehan, 153 same manner as litigations relative to cther property rights are disposed of. The legis lature did not create-if it could, which I deny-of the public service commission, a judicial tribunal to determine that question between the parties to this appeal, for it is settled law that, to make a judicial decision binding, the statute must provide for a notice to the parties affected and a hearing. Otherwise it is unconstitutional. Re Empire City Bank, 18 N. Y. 199; Stuart v. Palmer, 74 N. Y. 183, 30 Am. Rep. 289; Remsen v. Wheeler, 105 N. Y. 573, 12 N. E. 564. There is no provision in the statute requiring the public service commission to give notice to the appellant or anyone else of the application of the respondent for leave to issue securities. Therefore the decision of the commission could not conclude the appellant on the question of the respondent's franchise, in any litigation where it might be entitled to raise the question. The voluntary appearance of the appellant before the commission would not give any greater validity to the determination of the commission, because consent cannot confer jurisdiction. It may be suggested that this objection would be fatal to the rights of competitors to appear before the commission in proceedings under § 68 of the statute, as amended in 1910, or under § 59 of the railroad law (Laws of 1890, chap. 565, as amended by Laws 1892, chap. 676), or to appeal from its determination under those statutes. But those proceedings differ wholly in principle from the one before us. They require a determination by the commission of public convenience and necessity before the acquisition of a valid operative franchise. Such a determination decides no property right within constitutional protection. On the one hand, the legislature might allow any railroad company organized in compliance with the statute, to build its railroad between the points designated in its articles of association, as was the law of this state until some thirty years ago. On the other hand, the legislature might require of the corporation approval of its enterprise from just such authority or tribunal as it saw fit, as the grant of a franchise is a mere matter of grace on the part of the state. There is nothing inconsistent in the fact that, while the statute does not require notice to be given to parties who might be affected by the determination of the commission, it accords them the right to intervene and protect their interests. This is the doctrine of People ex rel. Stew ard v. Railroad Comrs. 160 N. Y. 202, 54 N. E. 697. or affected by the order or judgment. The fact that it may remotely or contingently affect his interests does not give him the right to appeal. It must have a binding force against his rights, his person, or his property. Ross v. Wigg, 100 N. Y. 243, 3 N. E. 180. See also Honegger v. Wettstein, 94 N. Y. 252. Indeed, the certiorari should not have been allowed at the instance of the appellant, for § 2122 of the Code of Civil Procedure forbids its issue to review "a determination which does not finally determine the rights of the parties with respect to the matter to be reviewed." Assuming, for the argument, that the determination of the public service commission imports, as between the commission and the respondent, that the latter has a valid franchise, that is of no importance under the section quoted, unless that decision finally determines the question as between the appellant and the respondent. The majority of my brethren holding that the appellant is entitled to prosecute its appeal, I am brought to the consideration of the merits of the case, and dissent from the decision about to be made as contravening both the settled substantive law of this state and also the settled method of procedure. The decision of my brethren proceeds on the proposition that, under the public service law, all gas and electric companies must obtain the consent of the commission, under § 68 of the act, to exercise their franchises before they can apply for leave to issue stock and bonds, and this whether the company had a valid franchise at the time of the enactment of the statute or not. In the opinion of the majority of Therefore, we are brought back to the the court, it is stated: "We perceive no original question whether the appellant is ground for a legislative partiality towards aggrieved in law by the authority ac- the corporations holding consents existing corded the respondent to issue stock and it the adoption of the public service combonds. Three cases are cited as authority missions law, or for the requirement that for the proposition that, because the appel- the permission and approval of the comlant was allowed to intervene below, it is mission must be had for the construction entitled to prosecute the appeal. They are under the franchise only. A scrutiny of Atty. Gen. v. North America L. Ins. Co. 77 other sections of the law creates the conN. Y. 297, Ex parte Jordan, 94 U. S. 248, viction that it intends to bring under its 24 L. ed. 123, and Re Michigan C. R. Co. restrictions and regulation, in so far as 59 C. C. A. 643, 124 Fed. 727. In theses lawful, the franchises, powers, and rights cases, however, the interest of the interven of the corporations existing at its enacters in the litigation was direct and sub-ment, and to which it relates, and, under stantial. They asserted the right to be the control of the commissions, all construcawarded to them funds or property which tion of their plants." I think there is the the decrees appealed from awarded to best of reasons for so-called legislative others. They would have been necessary partiality to corporations existing at the parties to the litigation in the first in- time of the enactment of the statute; that stance, except for the fact that, being mortis to say, it was beyond the power of the gage bondholders, the trustees in law rep legislature to require any corporation havresented them. But the fact that a partying a valid franchise for supplying gas or is allowed to intervene does not allow himlectricity in a municipality, to obtain the to prosecute an appeal, unless he is bound consent of the public service commission as Jervis Gaslight Co. 122 N. Y. 18, 9 L.R.A. 711, 25 N. E. 246; Bly v. Edison Electric Illuminating Co. 172 N. Y. 1, 58 L.R.A. 500, 64 N. E. 745. a condition precedent to the exercise of its | York, N. H. & H. R. Co. 103 N. Y. 10, 57 franchise, because, under the decisions al-Am. Rep. 701, 8 N. E. 537; Bohan v. Port ready cited in this opinion, that franchise was property, and as immune from legislative attack as any other property. We have decided exactly that principle in People ex rel. Third Avenue R. Co. v. Public Service Commission, 203 N. Y. 299, 96 N. E. 1011. Nor is the principle affected by the fact that the franchise might not have been actually exercised at the time. A franchise, though unexercised, is property, within the constitutional safeguards. Suburban Rapid Transit Co. v. New York, 128 N. Y. 510, 28 N. E. 525. If taken, compensation must be made for it. Coney Island, Ft. H. & B. R. Co. v. Kennedy, 15 App. Div. 588, 44 N. Y. Supp. 825. As already said, the franchise may be forfeited for nonuser; but unless, in the statute authorizing the acquisition of the franchise, it is provided that a certain lapse of time shall operate as a forfeiture ipso facto, a forfeiture can be decreed only by judicial proceedings in a direct action by the state. The franchise cannot be questioned by other parties. Re Brooklyn Elev. R. Co. 125 N. Y. 434, 26 N. E. 474. The only question on which the respondent's right to an issue of stock and bonds depends-the possession of a valid franchise -is not passed upon by the court. It is assumed that the respondent has exercised its franchise so far as the erection of poles, wires, fixtures, and conduits for electrical purposes in the streets, avenues, and public places of the city are concerned. A distinction is sought to be drawn between this franchise and a franchise to build an electric plant for the generation of electric power and current. This distinction seems to be wholly without foundation. A franchise to furnish gas in a municipality, and to use the streets for that purpose, necessarily includes the franchise to manufacture gas to be delivered; a franchise to furnish electric power through the streets of a city necessarily includes the right to construct a plant for the generation and development of electricity; a franchise to maintain a street railroad includes the right to build a car barn for the storage of cars and a horse stable for the care of horses, if the right is to operate by horses, or an electric plant, if the road is to be operated by electricity. All these are inseparable incidents of the franchises, and cannot be severed from them. Indeed, it requires no franchise for a company to build on its own property an electric plant or a horse stable or a car barn, unless these uses constitute a nuisance against the neigh bors, in which case the grant of a franchise would be no protection. Cogswell v. New On the matter of practice, it is said the court does not consider the question whether the franchise held by the respondent was actually exercised by it prior to the enactment of the public service commissions law, because the commission did not make or base the final order upon a finding of fact in regard to it. I know of no rule requiring the public service commission to make findings of fact; and, indeed, in the great mass of special proceedings, the exceptions being very few,-no findings of fact are made by the tribunal of first instance, whether judicial or quasi judicial. In such cases, all that is required in this court to sustain the orders appealed from is that the record should present some evidence to justify the order. The commission made no findings of fact on which the present order was based. But this is equally true of many, if not all, of the orders of the public service commissions. If a new practice is to be established and the order reversed for a defect of that character, the case should be remitted to the commission for a further determination. There are too many embarrassments at tending the disposition of this case on the merits for us to enter upon its decision needlessly. The right of the Long Acre Company to any franchise whatever can be properly determined in an action brought by the attorney general on behalf of the people, and there it should be determined. Same surgical operation use of be necessary to bring about the recovery of sponges contract obligation. her health. She further says that the de2. Plaintiff pleaded that defendant con- fendant accepted said employment, and entracted to perform a certain abdominal sur-tered upon the discharge of his duties on gical operation, and as a part of such operation the surgeon used certain sponges, and that there was negligence in the use and failure to remove one of said sponges. The answer admits the contract to perform said surgical operation, and admits that "in the performance of said operation it was necessary that certain sponges be used." Held, that under the pleadings of this case the use, care, and removal of such sponges are a part of the operation contracted for. how pleaded. 3. A special custom or usage in any particular trade, business, or profession, to be available to either party, must be specially pleaded. Same Same custom variance evidence of custom. 4. In the absence of any averment in the answer specially pleading a professional usage or custom as to the care and accounting of sponges by a nurse or other attendant, evidence for the purpose of showing such professional usage or custom is incompetent and inadmissible. Appeal or about the 30th day of September, 1907; that defendant ordered plaintiff to be removed to a hospital in the city of Cleveland for the purpose of performing upon her a surgical operation; that thereafter, on or about the 1st day of October, 1907, he undertook to, and did, perform a surgical operation upon the body of the plaintiff, opening by the use of surgical knives the abdomen, and, among other things, removed the ovaries and Fallopian tubes from her body; that defendant, while performing said operation, used and inserted in the opening of her abdomen so made a gauze or cheesecloth sponge, for the purpose of said surgical operation, which sponge was made up of and consisted of several layers of cloth gauze, or cheesecloth; that it then and there became and was the duty of said defendant, in furtherance and performance of said employment, to remove said sponge from said opening and from said abdomen when the purpose for which it had been applied was accomplished; that the defendant, without the knowledge or consent of plaintiff, did carelessly and negligently, and in violation of the obligations and duties of said employment, leave said sponge in the opening so made, and permitted the same to remain in the abdomen of plaintiff after its use and purpose in said body had been fully served; that defendant continued to treat plaintiff for a period of about six months, during which time he carelessly, negligently, and in disregard of his duties and obligations, failed to remove said sponge, and permitted the same to be and remain imbedded in her said abdomen during said period of about six months; that by reason thereof she was subjected to and did suffer acute and intense bodily pain and mental anguish during the said period of six months; that said sponge had abraded, worn through, and severely ruptured her intestines, with which it came in contact, and caused her fearful pain and suffering, such as to compel her to suffer a second operation at the hands of another surgeon for the purpose of relieving her condition; that said second operation resulted in finding and removing said sponge; that, as the direct result and consequence of defendant's gross negligence and carelessness aforesaid, plaintiff has suffered intense physical pain and mental-anguish and became a totally helpless invalid, and been wrecked and ruined physically and mentally, for the rest of her life, all to her damage in the sum of $25,000, for which amount she prays judgment. The defendant answered to such petition |