New York Tel. Co. v. Bd. of Educ. of Elmira

CourtNew York Court of Appeals
Writing for the CourtFINCH
Citation270 N.Y. 111,200 N.E. 663
Decision Date03 March 1936
PartiesNEW YORK TELEPHONE CO. v. BOARD OF EDUCATION OF CITY OF ELMIRA.

270 N.Y. 111
200 N.E. 663

NEW YORK TELEPHONE CO.
v.
BOARD OF EDUCATION OF CITY OF ELMIRA.

Court of Appeals of New York.

March 3, 1936.


Action by the New York Telephone Company against the Board of Education of the City of Elmira, a body corporate, wherein the defendant filed a counterclaim. From a judgment of the Supreme Court, Appellate Division, Third Department (245 App.Div. 788, 281 N.Y.S. 411), affirming, one justice dissenting, a judgment in favor of the plaintiff and dismissing the counterclaim, the defendant appeals.

Judgment of the Appellate Division and of the Trial Term reversed, and complaint dismissed, and judgment directed for defendant on the counterclaim.

The trial court found that the defendant paid to the plaintiff full rates for telephone service from January 10, 1924, to March 21, 1930, and that the difference between the one-half rate and the full rate for such period amounted to $3,587.81. It was admitted in the answer that there was due to plaintiff for service rendered during the period from March 21, 1930, to June 1, 1932, the sum of $2,007.99, being one-half of the amount for which recovery was sought by the plaintiff.


[270 N.Y. 112]Appeal from Supreme Court, Appellate Division, Third Department.

[270 N.Y. 113]Philip E. Lonergan, Corp.
Counsel, of Elmira (Halsey Sayles, of Elmira, of counsel), for appellant.

Fred H. Jeffers, of Elmira, for respondent.


[270 N.Y. 114]FINCH, Judge.

This action was brought by the New York Telephone Company against the board of education of the city of Elmira to recover $4,015.98 for telephone services rendered between March 21, 1930, and June 1, 1932. The answer set up that in 1894 a franchise was [270 N.Y. 115]granted to the plaintiff's predecessor in title by the common council of the city of Elmira, which provided that the departments of that city would be furnished telephone services at one-half the standard rates. The board of education also entered a counterclaim for $1,704.79 on the ground that it had wrongfully been charged full

[200 N.E. 664]

rates from January 10, 1924, to March 21, 1930. Special Term granted a judgment for the full amount in favor of the plaintiff and dismissed the counterclaim. The Appellate Division has affirmed. 245 App.Div. 788, 281 N.Y.S. 411.

There is no dispute concerning the facts, and the question before us, therefore, is one of law involving the proper construction of the provision in the franchise. The franchise which granted the plaintiff's predecessor permission to place some of its wires under ground was granted in 1894. It contains the following: ‘9. That as an additional consideration for the permission hereby granted, the said company, its successors and assigns, shall furnish and maintain for the city within one-half mile of its central office in said city and at such places as its Common Council shall direct, three free Common Council shall direct, and for all other exchange service for municipal services, shall furnish the city departments with telephones at one-half the standard rates in said city for similar services.’

The defendant, the board of education, maintains that it is a ‘city department’ within the meaning of that term as used in the franchise and that it is entitled to telephone service at one-half the standard rates. The record shows that from April 30, 1894, immediately following the grant of the franchise, until January 10, 1924-a period of about thirty years-the plaintiff furnished the defendant telephone service at one-half the standard rates. In October, 1923, the plaintiff informed the defendant that it intended to discontinue the reduced rate. The defendant referred the matter to its finance committee and in 1924 adopted a report of that committee[270 N.Y. 116]which found the defendant not entitled to the reduced rates. The plaintiff was notified and from January 10, 1924, to March 21, 1930, it charged the defendant for telephone service at the standard rates. In March of 1930 the board of education refused to pay for telephone service except at the rates prescribed in the franchise and has not paid for telephone service since that time.

If the phrase ‘city departments' occurred apart from its setting there would be much force to the argument that the board of education was excluded from its scope. The phrase, however, must be given the meaning intended by the contracting...

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11 practice notes
  • Attorney Gen. v. Trustees of Boston Elevated Ry. Co.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • June 3, 1946
    ...932;New York City Employees' Retirement System v. Eliot, 267 N.Y. 193, 196 N.E. 23;New York Telephone Co. v. Board of Education of Elmire, 270 N.Y. 111, 200 N.E. 663; Williston, Contracts (Rev.Ed.) section 1590. The amount demanded by the trustees for a payment of a deficiency was not concl......
  • City of New York v. Wilson & Co.
    • United States
    • United States Court of Appeals (New York)
    • May 24, 1938
    ...New York City Employees' Retirement System v. Eliot, 267 N.Y. 193, 196 N.E. 23;New York Tel. Co. v. Board of Education of City of Elmira, 270 N.Y. 111, 200 N.E. 663. This brings us to the question of leases. Most of the leases referred to obviously related to upland and not to land under wa......
  • Nance v. Town of Oyster Bay
    • United States
    • United States State Supreme Court (New York)
    • November 18, 1963
    ...228, 231, 234, 228 N.Y.S.2d 228, 231, 234, 182 N.E.2d 610, 612, 613; New York Telephone Co. v. Board of Education of City of Elmira, 270 N.Y. 111, 119, 200 N.E. 663, 665, 666; Schulster v. Carney, 196 Misc. 356, 92 N.Y.S.2d 908, 912, aff'd. 276 App.Div. 592, 96 N.Y.S.2d 703). It follows tha......
  • People's Cable Corp. v. City of Rochester
    • United States
    • United States State Supreme Court (New York)
    • May 5, 1972
    ...the Village of Carthage case no longer stood for the principle it enunciated. In New York Tel. Co. v. Bd. of Education, [70 Misc.2d 771] 270 N.Y. 111, 118--119, 200 N.E. 663, 665 (1936), the court said: 'It (plaintiff) relies upon the case of Village of Carthage v. Central New York Telephon......
  • Request a trial to view additional results
11 cases
  • Attorney Gen. v. Trustees of Boston Elevated Ry. Co.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • June 3, 1946
    ...932;New York City Employees' Retirement System v. Eliot, 267 N.Y. 193, 196 N.E. 23;New York Telephone Co. v. Board of Education of Elmire, 270 N.Y. 111, 200 N.E. 663; Williston, Contracts (Rev.Ed.) section 1590. The amount demanded by the trustees for a payment of a deficiency was not concl......
  • City of New York v. Wilson & Co.
    • United States
    • United States Court of Appeals (New York)
    • May 24, 1938
    ...New York City Employees' Retirement System v. Eliot, 267 N.Y. 193, 196 N.E. 23;New York Tel. Co. v. Board of Education of City of Elmira, 270 N.Y. 111, 200 N.E. 663. This brings us to the question of leases. Most of the leases referred to obviously related to upland and not to land under wa......
  • Nance v. Town of Oyster Bay
    • United States
    • United States State Supreme Court (New York)
    • November 18, 1963
    ...228, 231, 234, 228 N.Y.S.2d 228, 231, 234, 182 N.E.2d 610, 612, 613; New York Telephone Co. v. Board of Education of City of Elmira, 270 N.Y. 111, 119, 200 N.E. 663, 665, 666; Schulster v. Carney, 196 Misc. 356, 92 N.Y.S.2d 908, 912, aff'd. 276 App.Div. 592, 96 N.Y.S.2d 703). It follows tha......
  • People's Cable Corp. v. City of Rochester
    • United States
    • United States State Supreme Court (New York)
    • May 5, 1972
    ...the Village of Carthage case no longer stood for the principle it enunciated. In New York Tel. Co. v. Bd. of Education, [70 Misc.2d 771] 270 N.Y. 111, 118--119, 200 N.E. 663, 665 (1936), the court said: 'It (plaintiff) relies upon the case of Village of Carthage v. Central New York Telephon......
  • Request a trial to view additional results

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