Shelley v. Westchester Lighting Co. — 139 A.D. 690

Majority

p. 690

Annie Shelley. Respondent, v. The Westchester Lighting Company, Appellant.

Second Department,

July 29, 1910.

Headnote

Gas and electricity — penalty for shutting off gas — when written application for supply of gas sufficient.

One who on becoming a tenant informed an employee of a gas company, who called at. the premises, that she wished to be supplied with gas, and on being told by him that. she would, be supplied if she signed a blank order offered by him, did so, leaving the blanks unfilled with the exception of the residence, and delivered the same to the employee, and who was thereupon furnished with gas for two days, has made a sufficient written application to the company to bring her within that section of the Transportation Corporations Law which imposes a penalty on gas companies which unlawfully refuse to supply gas.

Hence, she may recover the statutory penalty when after such application and . against her protest the gas was shut off solely because a prior tenant failed to , pay for gas. '

Appeal by the defendant, The Westchester Lighting Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county, of Westchester on the 7th day of February, 1910, upon the verdict of a jury, and also from- an order entered in said clerk’s office on the 28th day of February, 1910, denying the defendant’s motions to direct a verdict and for a new trial made upon the minutes.

Odell D. Tompkins, for the appellant.

John Brooks Leavitt [Taylor More with him on the brief], for the respondent.

. The essential facts are practically undisputed in this case. The plaintiff on the 19th day of August, 1905, was' the occupant of certain premises in the city of Yonkers.. . Just prior to the plaintiff. taking possession these premises- had been occupied by one Helen Keller, who departed leaving a' gas bill unpaid to the defendant. On the date above mentioned, which appears to have been a Saturday, one of the defendant’s gasfitters, Perrine, called at the premises,

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was informed of the change of tenancy, and that the new tenant, the plaintiff, wished to be supplied with gas. Perrine thereupon indorsed upon his order card “ transferred,” and “ Shelley takes,” and left the meter open for the plaintiff’s use.- Mrs. Shelley testifies that at the same time Perrine told lief that if she would sign a blank order, which he produced, he would see that the gas was furnished. Mrs. Shelley signed the application, with all of the blanks left unfilled with the exception of the residence, and delivered the same to the defendant’s agent, and the defendant produced this application upon the trial. This testimony of Mrs. Shelley is not disputed, and is not questioned on this appeal. On the Monday following this transaction, the plaintiff having in the meantime been receiving the defendant’s gas, another of defendant’s employees, one Baker, called at the premises, presented to the plaintiff a bill of the company against Helen Keller, and, on the. plaintiff refusing - to pay it, locked the meter. The plaintiff testified, and she is not disputed, that she thereupon went to the office of the defendant and found an old man with gray hair behind the desk; that she complained to him that her gas had been shut off for non-payment of the bill of a third party, and that this man said' to her tliat he would look into it, but from that time down to the commencement of this action in June, 1906, no gas was furnished to the plaintiff. The purpose of this action is to recover the penalty of ten dollars, with five dollars per day for each day on which the defendant has refused or neglected to furnish gas, under the provisions of section 65 of the former Transportation Corporations Law (Gen. Laws, chap. 40; Laws of 1890, chap. 566), which has been re-enacted in section 62 of the present Transportation Corporations Law (Consol. Laws, chap. 63; Laws of 1909, chap. 219). The plaintiff has judgment for $!,■769.83, and the defendant appeals from such judgment.

The only point necessary to be considered upon this appeal (the case having been previously before this court on demurrer — 128 App. Div. 890 ) is the contention of the defendant that the application of the plaintiff was insufficient. The statute provides that “ Upon the application, in writing, of the owner or occupant of any building or premises within one hundred feet of any main laid down by any gas light corporation, or the wires of any electric light corporation, * * ■ * the corporation shall supply gas or electric

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light as may be required for lighting such building or premises,”, etc. There is no dispute that the plaintiff did sign a printed blank furnished by the defendant’s agent, with the understanding on her part that she was making the necessary application for gas from the defendant, and the -defendant concedes in its replying brief upon this appeal that this transaction between Mrs. Shelley and its agent constituted a contract for the supplying of gas, which contract has been violated by the defendant, but • its contention appears to be that the contract for supplying gas, and which was partially performed on its part, may have been a verbal. contract, and that this would not bring the case within the statute. But it was not a verbal contract; the defendant’s agent required her to sign a blank contract furnished by the defendant. This contract recites that “......hereby makes application to the Westchester Lighting ' Company for......, to be supplied under the rules and regulations of the Company, to the premises Mo. 15 Vineyard Ave., occupied, by ......as a' ..... , and agree to pay for the same promptly at-the regular price and according to the rules of the Company, it being understood that the minimum charge -will be $..,. per month,” etc." The defendant put its own construction upon this contract by furnishing gas for two days, and by entering the account upon its own books as for gas, and there can be no doubt of the right and of the duty under' the circumstances of the defendant to fill up the blanks. ( Weyerhauser v. Dun, 100 N. Y. 150 , 155, and authorities there cited ; National Exchange Bank v. Lester, 194 id. 461, 471.) The plaintiff did make an application in writing; it was an application to deliver something “to the premises Mo. 15 Vineyard Ave.,” and the -defendant, acting upon that contract — for no other is shown delivered gas for a period of two days and then shut it off, notwithstanding the fact that the plaintiff personally appeared at the office of the defendant and complained of such action, We are clearly of the opinion that the plaintiff performed all of the conditions necessary to put the statute in motion, and that she is entitled to recover in this action. To hold that this application was not in writing, because the defendant had failed to physically insert the word “ gas,”- where its own agent had accepted the application and had left the gas meter open for the sole purpose of complying with the request, and the corporation had accepted the

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contract and entered it upon its books, would be to permit the defendant to shield itself by its own wrong.

The defendant was permitted to go to the jury upon the proposition- that- the failure to deliver gas was due to inadvertence, which was certainly as much as it had any right to claim, and the jury having found against it upon this point, as well as upon the merits generally, there is no reason for overthrowing the' judgment. The ' charge of the court as to the law was clearly in favor of the defendant, and the criticism now urged is without force. The statute imposes the penalty if the corporation “ refuse or neglect to supply gas,” and while it may he that a slight neglect in absolute good faith might be excused, the facts in this case would not seem to warrant a finding which would exempt the defendant from the penalty imposed by the statute. It is undisputed that the plaintiff went to the office and notified a man whom she found behind the desk of the cutting off of the supply of gas, and the defendant read the meter for months without a change, then changed the meter, and still read it for months without showing .any consumption. In the ordinary course of business a corporation supplying gas would look to find out why there was no consumption ; it did make a change of meters; it was in a position to know then, if not before, whether there was a compliance with the request for gas.

The judgment and order appealed from should he affirmed, with costs.

Hirschberg, P. J., Jenks, Burr and Thomas, JJ., concurred.

Judgment and order affirmed, with costs.

Cases cited

Weyerhauser v. Dun 100 N. Y. 150 N.Y. 1885-10-06 at 155 p. 692