Bennett v. Eastchester Gaslight Co.

The action is brought against a gas company to recover the penalty imposed by section 65 of the transportation corporation law (chapter 566, Laws 1890) for a failure to supply the plaintiff with gas át his office, room No. 2, in the Post Office Building, at Mt. Vernon, N. T. The plaintiff’s occupancy, of the office began about January 31, 1897. On the 5th day of February he attempted to light the gas, and discovered that there was no flow. It appeared on the trial that the meter had been removed a few days previously by the defendant at the request of the prior occupant of the office. On the 6th day of February the plaintiff called at the office of the defendant, and applied to the manager to have the meter - restored to the office, and to have gas supplied for his use. Subsequently, on the same day, he served on the defendant a written application to the same effect. There is no dispute that the defendant failed and refused to restore the meter and to supply the gas, but there is a serious dispute as to- the reasons assigned for such failure and refusal at the time the plaintiff made his application. It appears that the defendant had a disputed claim against the plaintiff for a small sum for gas alleged to have been supplied to the plaintiff at his residence some years before. The plaintiff testified that, when he asked for gas to be furnished at his office, the manager demanded as precedent conditions that he deposit the sum of $5, and also that he pay this disputed bill. He further testified that he then tendered the $5, but refused to pay the bill. The defendant’s witnesses testified, on the other hand, that the only condition named was the deposit of $5, which -the plaintiff neither tendered nor offered to pay, and that no demand was made for payment of the disputed bill. The learned •trial justice submitted to the jury the issue of fact thus raised, in

The defendant contends, however, that the written application served by the plaintiff was insufficient. It is couched in almost the identical language as the one under consideration in Jones v. Electric Co., 7 App. Div. 465 , 469, 39 N. Y. Supp. 1105 , and which was there held to comply with the statute. It is true that in that case the applicant was the individual from whom the meter had previously been taken away, while in this case the applicant was a succeeding tenant, but the difference is immaterial. The defendant had a few days before supplied gas to the office occupied by the plaintiff, and therefore knew the nature and extent of the service, and the plaintiff’s application in terms required that he be supplied “with gas for lighting said offices as heretofore supplied, by the return of the meter to said offices as the same was placed on the first of the present month.” It thus appears that what the plaintiff desired was that the defendant should light his offices as they were lighted during the occupancy of his predecessor, and written notice of this desire was communicated to the defendant with reasonable precision and exactness. The defendant did not claim to be in doubt as to the extent of the service required, as was the case in Andrews v. Power Co., 23 Misc. Rep. 512 , 51 N. Y. Supp. 872 . No form of application is prescribed by the statute, and therefore one which fairly and plainly states the service required without ambiguity and with reasonable certainty should be deemed sufficient.

The defendant offered evidence designed to show that the demand for a deposit of $5 was reasonable, within the meaning of section 66 of the transportation corporations law (chapter 566, Laws 1890), and various errors are assigned in the ruling of the learned trial justice relating to such evidence. As the plaintiff had testified that he tendered the deposit, he was hardly in position to raise the question upon the trial that the demand so acceded to was unreasonable, and on a previous appeal this court had held that the burden of proof was on the plaintiff. Bennett v. Gaslight Co., 40 App. Div. 169 , 57 N. Y. Supp. 847 . We find no errors in the ruling of the court upon the evidence in question. Indeed, the court endeavored to eliminate from the case the question of the reasonableness of the demand for a deposit, saying: “The question of reasonableness is not in this case. I rule this testimony out. The plaintiff’s testimony is that the refusal was not put on that ground at all. The refusal was put on the ground that he would not pay the bill for the residence he formerly occupied.” To thus the defendant’s. counsel, Mr. Swits, responded, “The defendant excepts to the ruling of the court;” whereupon the

Judgment and order affirmed, with costs. All concur.