Central New York Telephone & Telegraph Co. v. Averill

Majority

p. 525

Central New York Telephone and Telegraph Company, Respondent, v. Charles S. Averill et al., Appellants. (Action at Law.)

Headnote

Central N. Y. Tel. & Tel. Co. v. Averill, 129 App. Div. 762 , affirmed.

(Argued May 3, 1910;

decided June 14, 1910.)

Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 20, 1909, reversing a judgment in favor of defendants entered upon a decision of the court at a Trial Term without a jury and granting a new trial.

p. 526

A. H. Cowie for appellants.

Edwin, Nottingham for respondent.

This is an action at law to recover the sum of $1,659 for rentals by the plaintiff corporation for telephone service rendered to the defendants under a contract which is the subject of consideration in an equity suit between the same parties decided herewith. The conclusion reached in that case that the exclusive clause of the contract in controversy does not invalidate the other portions of the agreement disposes of all the questions raised upon the appeal in the present action.

The order of the Appellate Division in this case should, therefore, be affirmed, with costs, and judgment absolute directed against the defendants.

Cullen, Ch. J., Haight, Hiscook and Chase, JJ., concur; Gray, J., concurs in result.

Judgment affirmed.