Opinion
May 2, 1949.
In an action to recover the statutory penalty and damages by reason of defendant's discontinuance of supply of electric current to plaintiff's residence, order denying plaintiff's motion to dismiss defendant's counterclaim for alleged unpaid current consumed, pursuant to rule 113 of the Rules of Civil Practice, and to strike out defendant's answer as sham, pursuant to rule 104 of the Rules of Civil Practice, affirmed, with $10 costs and disbursements. The motion was based upon the contention that the determination in favor of plaintiff in a proceeding which had been instituted by him, pursuant to article 78 of the Civil Practice Act, directing defendant to restore the service, was res judicata of the issues in the present action. In order to prevail in this action, at least insofar as the cause for penalty is concerned, plaintiff must establish that defendant has refused or neglected to supply electricity to him for a period of ten days. (Transportation Corporations Law, § 12.) That was not an issue in the prior proceeding and no finding to such effect was made. There, the finding that plaintiff offered to pay, six days after current was originally discontinued, an amount greater than was found by the Official Referee to be owing, together with the findings that tampering with or failure to protect and safeguard the meter in plaintiff's premises had not been proved, was sufficient to support the determination. Nolan, P.J., Carswell, Johnston, Adel and Wenzel, JJ., concur. [See post, p. 852.]