Olin v. United Electric Light & Power Co. — 82 Misc. 427

Majority

p. 427

Frank E. Olin, Appellant, v. The United Electric Light and Power Company, Respondent.

(Supreme Court, Appellate Term, First Department,

November, 1913.)

Headnote

Trespass — what constitutes — liability of defendant for turning off lighting current by its “ cut out inspector ” without consent of plaintiff.

The act of defendant’s “ cut out inspector,” on obtaining an entrance to plaintiff’s apartment for the pretended purpose of inspecting the electric meter and who wrongfully turned off the current without the consent of plaintiff who at the time had paid his lighting bill in full, eonstiutes a trespass for which defendant is liable though within two hours thereafter it turned the current on.

Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, seventh district, entered in favor of the defendant upon a verdict directed by the court.

Frederick W. Hamberg, for appellant.

Beardsley, Hemmens & Taylor, for respondent.

The action is brought for trespass in entering plaintiff’s premises by trickery and wrongfully turning off the electric light without plaintiff’s consent.

On December 2,1912, about four thirty p. m. after all bills due for electric light supplied to plaintiff by defendant had been paid, defendant’s “ cut out inspector ” called at plaintiff’s apartment, rang the bell, and said he came to read the electric meter. He was given a chair, and the light turned on by the plaintiff’s servant for him to read the meter. Instead of read

p. 428

ing or inspecting the meter he turned off the current. When asked why he was turning the lights off, he said, because you people do not pay your bills. Plaintiff’s wife immediately called up on the telephone the defendant’s Hamilton Place station, where she paid her bills, but all proof of what was said by her or defendant’s representative was excluded; to which plaintiff excepted. .

She was allowed to testify that as a result of what was said, defendant sent a man to her apartment, who at six thirty p. m., the same evening turned on the current. She mailed her check in payment of defendant’s bill on November 29, 1912; the indorsement thereon shows that it was deposited by defendant in the bank on which it was drawn and was also paid to defendant by that bank on December 2, 1912. The defendant’s hill was dated November 27, 1912; was received on November 27, 1912; part of the service charged therein was under date of November 11, 1912, and it seems to have been paid promptly.

The defendant’s cut-out inspector testified that on December 2,1912, he cut off the current as the result of a cut-off list he had had ever since November twenty-ninth, without, as he claims, either making any misrepresentations or using any force. His testimony is somewhat contradictory and unsatisfactory. But the direction of a verdict for the defendant establishes, for the purposes of this appeal, the truth of plaintiff’s testimony in so far as there is any conflict as to details. Defendant’s cashier testified to the receipt of plaintiff’s wife’s check for its bill, when he got to his office at nine a. m., on the morning of December 2, 1912, in the first mail, and that he deposited it about noon.'

Under the contract defendant had a right to enter plaintiff’s apartment to read or inspect the meter at all reasonable times; under the statute it had a right

p. 429

to enter and cut off the current if bills were overdue and payment was refused after a demand; four thirty p. m., on a Monday afternoon was a reasonable time to read or inspect the meter or to cut- off. the current because of an unpaid bill; but at that time there was no unpaid bill, and the entering of the apartment for the pretended purpose of inspecting the meter and then wrongfully turning off the current without plaintiff’s consent constituted a trespass for which defendant would be liable. It is immaterial, except as to the amount of damages, whether such a tortious entry is obtained by deceit, stealth, threats, force or without actual consent; in any case it is a trespass. Dobbs v. Northern Union Gas Co., 78 Misc. Rep. 136 , 138, 139; Reed v. New York & Richmond Gas Co., 93 App. Div. 453 , 455; Fortescue v. Kings Co. Lighting Co., 128 id. 826, 827.

Seabury and Bijur, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.

Cases cited

Dobbs v. Northern Union Gas Co. 78 Misc. Rep. 136 N.Y. App. Term 1912-11-08 at 138, 139 p. 429