Opinion
May, 1898.
Charles P. Hallock, for respondent.
Tierney Halsey, for appellant.
The defendant is an electric light and power company carrying on business in the city of New York. The plaintiff, residing at No. 729 Tremont avenue, New York city, opposite which the defendant's electric light wires are strung, served on the defendant on June 10, 1896, a written notice as follows: "In compliance with the statutory provision I hereby demand that you supply me at my office, 729 Tremont avenue, New York city, with electric light and power at once." On the same day the defendant replied to said communication as follows: "How many lights and how much power do you want?" to which plaintiff never replied either in writing or verbally. His next move was made on July 11, 1896, when this action was commenced by him.
The statutory provision upon which plaintiff relies herein is section 65 of chapter 566 of the Laws of 1890. It reads as follows:
"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, the corporation shall supply gas or electric light as may be required for lighting such building or premises, * * * and if for the space of ten days after such application, and the deposit of a reasonable sum as provided in the next section, if required, the corporation shall refuse or neglect to supply gas or electric light as required, such corporation shall forfeit and pay to the applicant the sum of ten dollars, and the further sum of five dollars for every day thereafter during which such refusal or neglect shall continue; provided that no such corporation shall be required to lay service pipes or wires for the purpose of supplying gas or electric light to any applicant * * * nor unless the applicant, if required, shall deposit in advance with the corporation a sum of money sufficient to pay the cost of his portion of the pipe or wire required to be laid, and the expense of laying such portion."
Section 66 of said act reads as follows:
"Every gas light and electric light corporation may require every person to which such corporation shall supply gas or electric light for lighting any building, room or premises to deposit with such corporation a reasonable sum of money according to the number and size of lights used or required, or proposed to be used for two calendar months, by such person and the quantity of gas and electric light necessary to supply the same as security for the payment of the gas and electric light rent or compensation for gas consumed, or rent of pipe or wire and fixtures, to become due to the corporation, but every corporation shall allow and pay to every such depositor legal interest on the sum deposited for the time his deposit shall remain with the corporation."
Under section 65 it was the duty of the plaintiff to clearly specify in his written application what electric light and power he required for use in his premises, particularly so in this instance, because of the letter of the defendant to him in response to his notice, requesting him to name the number of lights and power needed. Such request, on the defendant's part, was reasonable and proper and should have been complied with by plaintiff. Section 65 reads that the defendant must furnish all electric light and power required by the applicant, and, therefore, casts upon him the obligation of naming just what he requires, and no duty rests upon the defendant to furnish light and power to any person until such applicant makes such requisition. The justice of this rule, we think, is apparent when we consider the fact that one man may think one light is all he requires, while another man for lighting the same premises, may think that 100 are none too many. Besides, for the purpose of permitting the defendant to fix the cash deposit, which it may require from the applicant under section 66 of the act in question, the number of lights and power required should be named, because how else may the defendant fix such charge.
As we view the act under consideration, the plaintiff has failed to establish herein a cause of action against the defendant, because of his refusal to furnish in writing, as required by the defendant, the number of lights and power required by him in his premises. Until he did so, no duty rested upon the defendant to furnish him with light or power.
The motion made by the defendant's counsel to dismiss the complaint should have been granted.
Judgment reversed and complaint dismissed, with costs to appellant.
O'DWYER, J., concurs.
Judgment reversed and complaint dismissed, with costs to appellant.