Shelley v. Westchester Lighting Co. , 105 N.Y.S. 133 ( 1907 )

Tompkins, J.

This action is brought under chapter 566, Laws 1890, to recover $1,510 penalties, for a period of 300 days, for the defendant’s alleged refusal to supply the plaintiff with gas.

The defendant demurs to the complaint on the ground that it fails to state facts sufficient to constitute a cause of action.

The complaint alleges that an application was made by the plaintiff “ in writing in .a form as required by defendant.” In the next paragraph the complaint alleges that “ said defendant waived written application as required by said statute,” and that thereafter the defendant put in a gas meter and began to supply gas as requested by the plaintiff, and continued so to do for two or three days, when the defendant, without any just cause or reasonable excuse, cut off said gas, disconnected and removed said gas meter, and refused to continue to supply the plaintiff with gas.

The defendant’s duty to supply gas arises only: “ Upon the application, in writing, of the owner or occupant of any building or premises within one hundred feet of any main laid down by any gas light corporation, or the wires of any electric light corporation, and payment by him of all money due from him to the corporation.” Laws 1890, chap. 566, § 65.

I think the demurrer must be sustained. The complaint fails to allege that a written application in compliance with the statute was ever made. On the contrary, the complaint alleges, in the fourth paragraph thereof, that the defendant waived the written application required by the statute.

In a similar case (Shelley v. Westchester Lighting Co.), 119 App. Div. 61, it was held that no liability under this highly penal statute could be predicated upon a waiver of the conditions upon which the right to a penalty depends. To state a cause of action under this statute the complaint must show that an application, substantially in the form fixed by the law, was made by the plaintiff to the defendant.

The complaint fails to show that such an application was made and, in that respect, fails to state a cause of action.

It appears from the complaint that, after the alleged waiver of the statutory application and in compliance with an application made in writing, “ in a form as required by the defendant,” the defendant did put in a gas meter and began to supply gas to the plaintiff’s premises and continued so to do for two or three days when the defendant, without just cause or reasonable excuse, cut off said gas, disconnected and removed said gas meter, and refused to continue to supply plaintiff with gas. It is upon that refusal that this action is based.. Eo claim is made by the plaintiff that any application in any form, for a supply of gas, was made by him after the cutting off of the supply.

The only application made and the alleged waiver of the statutory application were before the defendant put in a meter, or supplied any gas.

The default, contemplated by the statute making the defendant liable for the penalty, is only set in motion by the making of the written application prescribed by the statute; and, to make the defendant liable in this action, it must appear that, after the defendant cut off the supply of gas, the plaintiff made such written application. In other words, there should have been a renewal of the application after the shut-off.

The complaint contains no allegation of such an application and, in that respect, also fails to state a cause of action.

Demurrer sustained, with leave to the plaintiff to plead over within twenty days on the payment of costs.

Demurrer sustained, with leave to plaintiff to plead over within twenty days on payment of costs.