Mangravite v. New York Tel. Co.

• Court: United States State Supreme Court (New York)
• Writing for the Court: HOFSTADTER
• Citation: 208 Misc. 998,145 N.Y.S.2d 804
• Decision Date: 14 November 1955
• Parties: , 12 P.U.R.3d 43 Francis J. MANGRAVITE, Plaintiff, v. NEW YORK TELEPHONE COMPANY, Defendant.

Page 804

145 N.Y.S.2d 804 208 Misc. 998, 12 P.U.R.3d 43 Francis J. MANGRAVITE, Plaintiff,
v.
NEW YORK TELEPHONE COMPANY, Defendant. Supreme Court, Special Term, New York County, Part III. Nov. 14, 1955.

Page 805

[208 Misc. 999] Francis J. Mangravite, New York City, for plaintiff, in pro. per.

Ralph W. Brown, New York City (Robert Luce Donohue, New York City, of counsel), for defendant.

HOFSTADTER, Justice.

The plaintiff, an attorney, in this action challenges the terminology used by the defendant on its monthly bills for telephone service. Though, as will appear, the plaintiff asks for the correction of the defendant's method of billing and thus purports to speak for the defendant's subscribers generally, the action is not representative in form and can, therefore, be treated as one to redress only any grievance the plaintiff himself may be suffering.

It is undisputed that on the defendant's printed bills rendered each month this item appears: 'Local Service for One Month in Advance.' This is the regular monthly charge for local service. Another item is 'Balance From Last Bill'. The plaintiff, having refused to pay this monthly charge in advance, objects to being billed for it on his succeeding bill as a balance. [208 Misc. 1000] He admits that, in accordance with the defendant's tariff filed with the Public Service Commission, this monthly local service charge is payable in advance. He insists, however, that though it is thus payable it is not then due and owing because covering a service not yet rendered. The plaintiff says that in law this charge is due and owing only at the end of the month after he has received the service and that its designation on the next bill as a balance is a misnomer. He asserts that he has no adequate remedy at law and asks the court permanently to enjoin the defendant from claiming on its bills that the basic monthly charge billed in advance is then due and owing and from later billing it as a balance as it has been doing.

The complaint denounces the defendant's billing method as a fraud and deception by which it unlawfully collects from its customers moneys on which it earns profits and income. The plaintiff characterizes this as an improper and unethical windfall. Since, as has already been pointed out, this is not a representative action, the plaintiff is in no position to complain of the misuse, were it such, of the moneys of other customers. He himself has persistently withheld payment of the...