Stone v. Schenectady Railway Co.

90 N.Y.S. 742 | N.Y. App. Div. | 1904

Smith, J.:

For the purposes of this appeal the appellant concedes its liability for the breach of the contract. The right to cut off the current only existed after the expiration of ten days from the presentation of a bill. In violation of this provision of the contract the current was cut off within three days from the presentation of a bill. For such damages as the plaintiff has suffered therefrom the defendant is clearly liable.

Hnder the rule of damage stated by the trial court, however, we are unable to find a justification of the verdict rendered. The proof is not very definite as to just when this current was cut off or as to when it was restored. It was not cut off prior to the fourth of November, however, and it had been restored some time prior to the seventeenth of November. There is some proof to the effect that it was restored within a very few days after it was cut off. Assuming, however, the greatest period which the evidence will permit, the plaintiff’s business was interrupted less than thirteen days. If the prospective profits shown by the plaintiff amount to about one thousand five hundred dollars a year, the injury to the business for thirteen days or less would be in the neighborhood of from fifty dollars to fifty-five dollars. From this also should be deducted the amount confessedly owing by the plaintiff to the defendant for electricity furnished, which would bring the amount to which the plaintiff is entitled, in the most favorable view of the evidence, to a sum less than fifty dollars.

It is claimed, however, that the plaintiff was not notified when the current of electricity was restored, and that he is entitled to damages from the time the current was cut off until he was notified of the intention of the company to furnish him electricity. It appears, however, that at the time Mi’. Veeder, who was acting as the attorney for the plaintiff, made complaint to the defendant, he was taken to the office of Mr. Peck, defendant’s general manager. Witness Hanbridge was asked this question: “ Q. What did Mr. Peck say? A. He then and there immediately ordered them connected pending an investigation of the matter.” Mr, Peck himself swears that Hr. Veeder came into his office and claimed that an injustice had been done to his client. He then says: “ I immediately ordered the meter replaced pending an investigation. I ordered the wires reconnected.” The only inference possible from this evidence is that the order was made in the presence of Hr. Veeder, whose knowledge would be deemed the knowledge of the plaintiff. It was unnecessary to give further notice to plaintiff. It appears, therefore, that because the jury have failed to give effect to the charge of the court the judgment and order must be reversed and a new trial ordered, with costs to appellant to abide the event.

All concurred ; Chester, J., in result.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.