People ex rel. Kennedy v. Manhattan Gas Light Co.

Majority

p. 136

The People, ex rel. Kennedy, v. The Manhattan Gas Light Company.

Headnote

This court has authority to grant a mandamus directing a gas company to furnish gas to persons who, under the provisions of its chaztez-, have a right to receive it and who offer to comply with the general conditions on which the company supplies others.

Gas light companies possess; hy virtue of their charters, powers and privileges which othez-s can not exercise, and the statutory duty is imposed upon them to furnish gas on payment of all moneys due from applicants.

If an applicant is already indebted to a gas company, the company may shut off-the supply of gas, and refuse to furnish any more; especially if the applicant avows his insolvency, and his inability to pay for gas previously furnished.

Where an individual applies to a gas company for gas, and the same is furnished to him hy the company, for a period, without objection on account of a former indebtedness, this will not deprive the company of the right to reject a subsequent application, on the ground of such indebtedness.

APPEAL from an order made at a special term, denying an application for a mandamus commanding the defend- '

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ant to supply tlie plaintiff with gas, at his house,, Ho. 121 West Sixteenth street, Hew York.

I think there can be no doubt about the authority of this court to direct the respondents to furnish gas to persons who, under the provisions of their charter, have a right to receive it and who offer to comply with the general conditions on which the company supply others.

They possess, by virtue of their charter, powers and privileges which others can not exercise, and the statutory duty is imposed upon them to furnish gas on payment of all moneys due by such applicants.

We are left then to inquire whether the relator was in a condition to demand from the company this supply. It appears by the papers used on the motion that the relator comjnenced taking gas in 1858, at No. 61 in Seventh avenue, and was supplied with gas by the company, until 28th of December, 1861. That he paid for the gas so received up to 19th of August, 1861, and that for gas furnished after that date he has not paid. It also appears that in January, 1865, the respondent sued the relator and obtained a judgment against him for the amount due therefor, which still remaims unpaid. In May, 1864, the relator applied to the company for gas at 121 West Sixteenth street, which was furnished to him by the company, without objection on account of the former indebtedness, until 9th of February, 1865, when the company shut off the supply of gas and refused to furnish any more. It also appears that the relator in answer to a claim for payment of this indebtedness, represents himself as insolvent and unable to pay the judgment.

There is nothing in the charter of the- company which requires them to make the objection that the-applicant was indebted to them at the time of the first application. would be unreasonable to suppose that in every instance they could ascertain such indebtedness. If at any time the party

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is so indebted, the company may refuse to furnish, and more especially should this be so when the relator avows his insolvency and his inability to pay for gas furnished previously.

New York General Term,

November 7, 1865.

The attempted denial of liability for this bill, by the relator, will not aid him. The company, have obtained a judgment against him. This is not disputed, and no attempt is made by him to set it aside. So long as that remains- in force it is conclusive against him.

The order appealed from should he affirmed, with $10 costs.

Ingraham, Leonard and George G. Barnard, Justices.