168 N.Y. 65 | NY | 1901
The plaintiff brought this action to recover the penalties prescribed by section
We think the court properly disposed of the second and third causes of action. By the failure of the defendant to comply with the written application of the plaintiff and furnish him gas within ten days, it became subject to the penalty prescribed by the statute, and the plaintiff's cause of action accrued. While the amount of the penalty would depend on the period during which the defendant's default should continue, still it was a single penalty for a default which was also single, though it might be continuous. The cause of action being single was indivisible, and but one recovery therefor could be had. (Sturgis v. Spofford,
The ruling limiting the recovery on the first cause of action to the time when the plaintiff obtained gas by arrangement with one of his tenants, was erroneous. The statute requires a gas or electric light company to supply any owner or occupant of any building or premises with gas or electric light upon such owner or occupant complying with prescribed requirements. The defendant refused to supply the plaintiff with gas, and thereby subjected itself to a penalty. It was not relieved from this penalty by the fact that the plaintiff was able to get gas from another customer of the defendant. The gas was not supplied in any fair sense of the term, or within the meaning of the statute, by the plaintiff procuring the gas from his tenant. He had the right under the law to deal directly with the defendant at the price which the law might require the company to sell gas. The defendant having a public franchise, the prices it might charge were properly subject to legislative regulation and control. Not so, however, with the tenant with whom the plaintiff was compelled to deal by reason of the defendant's default. The gas got by the plaintiff from that tenant was the property of the tenant and not that of the defendant. He might have refused to allow the plaintiff gas at all, or if he consented to give him gas, might prescribe such price and conditions for furnishing the gas as he saw fit. The plaintiff testified, without contradiction, that he was obliged to pay an extra price to the tenant for the gas. The rule applied below would work great hardship to the owners or occupants of property and tend to defeat the object of the statute, which is to compel gas light corporations to sell light to all parties who are willing to pay for it by imposing penalties for refusal. When the gas was *70 cut off from the plaintiff's apartment house he was justified in obtaining light in the best method practicable. That he was compelled to resort to an exceptional method was an injury which the defendant's course inflicted upon him, and the plaintiff could not be placed in the dilemma of either suffering his premises to go unlighted or of abandoning his claim for penalties against the gas company, which though not the only means of redress was the one given by the statute as the most speedy and efficacious. The plaintiff was, therefore, entitled to recover for the whole period up to the time when the defendant directly supplied his premises with gas.
The judgment appealed from should be reversed and a new trial granted, costs to abide the event.
PARKER, Ch. J., O'BRIEN, BARTLETT, HAIGHT and VANN, JJ., concur; LANDON, J., not sitting.
Judgment reversed, etc.