Opinion
March, 1907.
The complaint alleges that the plaintiff resides at No. 287 Willis avenue, borough of the Bronx, and has been for a considerable period of time a customer of the defendant and user of gas in said premises; that the defendant rendered plaintiff a bill for gas consumed between September 17 and October 8, 1906, amounting to 1,300 cubic feet, at the rate of one dollar per 1,000, that the plaintiff tendered defendant payment for 1,300 cubic feet of gas at the rate of eighty cents per 1,000, which defendant has refused to accept, and has threatened to cut off the supply of gas unless the plaintiff pays the bill at the rate of one dollar per 1,000 cubic feet. In opposition to the motion to continue this injunction it appeared without contradiction that the plaintiff never was a customer of the defendant; had made no application to be supplied with gas, and that defendant had made no threat to remove the meter from plaintiff's premises; that one Leonard Paff had applied to the defendant to be supplied with gas, and deposited five dollars as security for gas supplied. There was no affidavit of the plaintiff submitted with the motion, the plaintiff depending upon the allegations of the complaint. As the proof before the trial court showed that the plaintiff was never a customer of the defendant; that she had never made any application to be supplied with gas, and that defendant had never supplied her with gas and never threatened to cut off any gas, it was improper to continue the injunction. The order appealed from must, therefore, be reversed, with ten dollars costs and disbursements, and the application for an injunction denied, with ten dollars costs. Patterson, P.J., McLaughlin, Clarke and Houghton, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and application denied, with ten dollars costs.