Tismer v. New York Edison Co.

• Decision Date: 24 February 1920
• Citation: 228 N.Y. 156,126 N.E. 729
• Parties: TISMER v. NEW YORK EDISON CO.
• Court: New York Court of Appeals Court of Appeals

228 N.Y. 156

126 N.E. 729

TISMER

v.NEW YORK EDISON CO. ^*

Court of Appeals of New York.

Feb. 24, 1920.

Action by Paul G. Tismer against the New York Edison Company. From a judgment of the Appellate Division reversing a judgment for plaintiff and dismissing the complaint (170 App. Div. 647,156 N. Y. Supp. 28), plaintiff appeals.

Reversed, and judgment of Trial Term affirmed.

Collin and McLaughlin, JJ., dissenting.Appeal from Supreme Court, Appellate Division, First department.

A. M. Sperry, of Albany, for appellant.

Charles I. Taylor, of New York City, for respondent.

CARDOZO, J.

This action was brought under section 65 of chapter 566 of the Laws of 1890 (now section 62 of the Transportation Corporations Law; Consol. Laws, c. 63) to recover penalties for the defendant's refusal to supply the plaintiff with electric light.

On January 27, 1908, the plaintiff made application to the defendant in writing that it supply electric current to an equipment for ‘about ten’ incandescent lamps and one onehorse power motor in the building No. 63 Grand street in the city of New York for the period of one year, and thereafter until termination by notice of 30 days. ‘The meter and service appliances necessary to connect the customer's equipment with its mains,’ were to be furnished by the company. ‘The wiring equipment and appurtenances' were to be ‘furnished by the customer, who shall maintain the same in condition required by the constituted authorities; but the company shall not be required to supply current hereunder until the equipment shall have been approved by the constituted authorities and by the company.’ This application, which had been made on one of the defendant's printed forms, was accepted by the defendant in writing on February 1, 1908. Both sides concede that at the time of the acts complained of by the plaintiff, these two papers, the application and the acceptance, made out the contract which defined the rights and duties of company and customer.

The wiring equipment and appurtenances furnished by the plaintiff were inspected by the department of water supply, gas, and electricity of the city of New York and by the board of fire underwriters. The plaintiff forwarded to the defendant on March 6, 1908, a certificate of approval by the city department. He also forwarded on the same day a letter signed by the chief inspector of the board of fire underwriters to the effect that on payment of its inspection fee of $2.50 a certificate of approval would be issued. About this time the equipment was connected somehow and by some one with the defendant's wires; and for some months thereafter the defendant supplied current, for which it rendered bills and received payment at monthly intervals. There was no complaint until June 30, 1908, when the defendant wrote that the certificate of approval of the board of fire underwriters had not yet been received. The plaintiff made no response, and on July 13, 1908, the defendant without warning disconnected the equipment and cut off the supply of current. It stated a month later, in response to an inquiry from the plaintiff, that some defects, which it made no attempt to explain, had been reported by the board, but it gave notice at the same time that even though these undisclosed defects were corrected, it would refuse to reconnect its wires until furnished with the desired certificate. On receipt of this notice the plaintiff made some trifling changes, substituting 11 incandescent lights for 10, but leaving the extent of his equipment in other respects the same. The change was approved by the city department, and its certificate forwarded to the defendant on September 30, 1908. At the same time the plaintiff made a second application in which he requested electric current for an equipment of 11 incandescent lamps. His letter concluded with these words:

‘I want to say that I am prepared and offer to comply with any proper requirements of your company, but I do and sahll always continue to refuse to furnish you with a certificate of the New York Board of Fire Underwriters, if I have to pay $2.50, or any other sum, to get it.’

The defendant answered on October 1, 1908, that without the certificate no current would be supplied. Following this refusal, the plaintiff waited till July 13, 1911, when he brought this action to recover the penalties accumulated since July 13, 1908. He had a judgment at Trial Term upon a verdict directed in his favor. The judgment was reversed at the Appellate Division, and the complaint dismissed.

[1][2][3][4] The statute says that an electric light corporation shall supply electric light for lighting purposes upon the written application of an owner or occupant of premises within 100 feet of its wires, ‘and if for the space of ten days after such application, and the deposit of a reasonable sum, * * * if required,’ the corporation shall refuse or neglect to supply electric light, it ‘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.’ Transportation Corporations Law, § 62; formerly Laws 1890, c. 566. The penalty has its origin in the statute, but the duty to serve would exist without the statute, for it results from the acceptance of the franchise of a public service corporation. People ex rel. Cayuga Power Corp. v. Public Service Comm., 226 N. Y. 527, 532,124 N. E. 105. In spite of this duty, we do not question the defendant's right to condition its supply of current upon the safety of the customer's equipment, and to establish reasonable regulations for the purpose of assuring itself that the condition has been fulfilled. In determining this case, however, our concern is not with the regulations which the defendant might have adopted. Our concern is with the regulations which the defendant did adopt. By its contract with the plaintiff, it undertook to supply electric current subject to the sole condition that the supply should not begin ‘until the equipment shall have beeen approved by the constituted authorities and by the company.’ The plaintiff furnished the certificate of the department of water supply, gas, and electricity. That was the approval of ‘the constituted authorities.’ Greater N. Y. Charter (Laws 1901, c. 466) §§ 519, 524. The board of fire underwriters is not an agency of government. It has no authority to impose commands which householders are required to obey. It is nothing but a voluntary association of private persons, without official rank or powers. Newcomb v. Boston Protective Ass'n, 151 Mass. 215, 24 N. E. 39,6 L. R. A. 778. The words ‘constituted authorities' must mean the same thing in the provision for preliminary...