McMullin v. New York Power & Light Corp. , 1936 N.Y. App. Div. LEXIS 5501 ( 1936 )

Appeal from an order granted at a Trial Term of the Supreme Court, Albany county, dismissing plaintiff’s complaint on the merits after a trial before the court and a jury and motions made by each party for a directed verdict at the close of the case; also appeal from judgment entered on said order. The action was brought to recover penalties amounting to $610 under the provisions of section 12 of the Transportation Corporations Law because of the shutting off of plaintiff’s supply of electric current, plaintiff being a subscriber for and user of such current. Relatives of plaintiff occupied the first floor and basement of premises in the city of Albany. The defendant had discontinued their service because of failure to pay therefor and thereupon the plaintiff, who occupied and paid for a room with said relatives, applied to the defendant for the furnishing of such service to him at said premises. The defendant supplied current to him for about twelve days and then discontinued further service, after having sent an investigator to the premises. The plaintiff thereafter made no written application for restoration of service, but brought this action. The court below held upon the authority of Shelley v. Westchester Lighting Co. (119 App. Div. 61) that under the statute plaintiff was required to make application for restoration of service as a prerequisite to bringing the action; and also held that the plaintiff procured the furnishing of . service to himself by subterfuge for the benefit of his relatives. Judgment and order unanimously affirmed, with costs. Present — Hill, P. J., Rhodes, McNamee, Bliss and Hefíeman, JJ.