Tarrytown & Irvington Union Gas Light Co. v. Bird — 47 N.Y. St. Rep. 424

Majority

p. 424

The Tarrytown & Irvington Union Gas Light Co., App’lt, v. James Bird et al., Trustees, Resp’ts.

(Supreme Court, General Term, Second Department,

Filed July 22, 1892.)

Headnote

Gas light companies—Evidence.

In an action to recover for gas supplied to and used by a defendant, it

p. 425

is competent to show that the gas went out by air passing through the pipes on both the questions of quantity and quality. The meter is not conclusive on the question of quantity, and defendant, by acceptance of the gas, does not preclude himself from showing a breach of the implied warranty as to quality.

Appeal from j udgrnent in favor of defendants, entered upon the verdict of a jury.

Action to recover for gas supplied to and used by a masonic lodge of which defendants are trustees.

Henry C. Griffin, for app’lt; George C. Andrews, for resp’ts.

-—This is an appeal from a judgment of the county court, entered upon the verdict of a jury.

This court cannot set aside the verdict as against the weight of evidence, Thurber v. Townsend, 22 N. Y., 517 , nor can the plaintiff here raise the point that the evidence conclusively established its rights to recover the full amount claimed, for it did not ask the court to direct the verdict in its favor. The question could only be raised by such an application and an exception to the court’s refusal to grant it.

The exceptions to the admission of evidence are not well taken. The answer put' in issue both the quality and the quantity of the gas furnished. The meter was not conclusive on the question of quantity. Sickles v. Manhattan Gas Light Co., 64 How., 33 .

It was competent to show that the gas went out by air passing through the tubes, on both questions of quantity and quality, for the defendant was to pay for gas, not air. The acceptance of the gas did not preclude the defendant from showing a breach of the implied warranty as to its quality, because the defects could not be discovered until the gas was burned.

The judgment appealed from should be affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.