140 N.Y.S. 544 | N.Y. Sup. Ct. | 1913
Defendant demurs to the complaint upon the ground that it appears upon the face thereof that it does not state facts sufficient to constitute a cause of action. The complaint alleges that the plaintiff was “ at all times heretofore mentioned a subscriber to and used the gas supply furnished by defendant and that upon becoming such subscriber she filed with this defendant a written application for gas to he supplied to her apartment and made the deposit demanded by defendant.” Then follows the allegation that the defendant without the consent of plaintiff unlawfully shut off plaintiff’s gas supply although she had previously and on or about the '10th day of January, 1913, tendered to this defendant the full amount of her indebtedness which ■ defendant refused to receive. The grounds of
I think both of these grounds of demurrer must be overruled. The plaintiff having been a customer -of the defendant and having been supplied at her apartment with gas by the defendant, it is not necessary for the plaintiff to allege or prove any tender of any alleged indebtedness to the defendant in order to maintain this action. Where a lighting .corporation cuts off an existing supply of a consumer, the burden is on the corporation to justify its act. Schmitt v. Edison Electric I. Co., 58 Misc. Rep. 19; Levine v. Brooklyn Union Gas Co., 146 App. Div. 464
It is only necessary that the plaintiff allege that the defendant, without her consent, unlawfully cut off the supply of gas that she was receiving, and that is done by the complaint in this action; the burden then rests upon the defendant to justify its act by alleging and proving an indebtedness by the plaintiff to it, which the plaintiff refused to pay.
I think it unnecessary to allege in this complaint that the plaintiff’s premises are within 100 feet of the defendant’s gas main, for the reason that the defendant had accepted the plaintiff as a customer of its gas and was supplying her with gas when the act complained of was committed.
The statute (Transp. Carp. Law, 1909, chap. 62) gives two causes of action, one for the refusal of a lighting company to supply gas within ten days after a written application therefor; and second, for unlawfully cutting off and discontinuing an existing supply. In the former the complaint must show that the premises for which the supply is sought are within 100 feet of a gas main but such an allegation is not necessary in an action to recover a penalty for unlawfully discontinuing an existing supply. In such a case the presumption is, from the fact that the lighting company furnished the supply, that the plaintiff’s building is
The demurrer will be overruled, with leave to the defendant to answer the complaint within twenty days upon payment of costs.
Demurrer overruled, with leave to defendant to answer within twenty days upon payment of costs.