Opinion
March 8, 1907.
John A. Garver, of counsel [ Shearman Sterling, attorneys], for the appellant.
Clarence J. Shearn, for the respondent.
This is an appeal from an order granting an injunction pendente lite. The action was brought to restrain the defendant from depriving the plaintiff of the use of gas by reason of the plaintiff's refusing to pay therefor more than at the rate of eighty cents per 1,000 cubic feet as provided by chapter 125 of the Laws of 1906.
The complaint is similar to that served in the case of Richman v. Consolidated Gas Co. ( 114 App. Div. 216; affd., 186 N.Y. 209). If the facts in the case at bar were similar to those presented in the Richman case, the order appealed from would have to be affirmed. The facts, however, differ.
Section 66 of the Transportation Corporations Law (Laws of 1890, chap. 566) provides that a gas company may require every person to whom it shall supply gas to deposit with such corporation a reasonable sum of money, according to the number and size of the lights used or required or proposed to be used for two calendar months by such person, and the quantity of gas necessary to supply the same, as security for the payment of the gas rent or compensation for gas consumed to become due to the corporation; and section 68 of said act provides that if any person shall refuse or neglect, after being required so to do, to make the deposit required, the corporation may prevent the gas from entering the premises of such person.
It appears by the answering affidavits that, based upon the prior consumption at the rate of eighty cents per 1,000 cubic feet, the sum of five dollars was a reasonable amount to demand from the plaintiff as a deposit to secure the payment of the gas for the ensuing two months at said rate. A demand was duly made upon the plaintiff to make such deposit as authorized by said section 66 of the Transportation Corporations Law ( supra), and the plaintiff refused to comply therewith. There is nothing in chapter 125 of the Laws of 1906, fixing the price of gas, which in any way repeals, modifies or affects the sections of the Transportation Corporations Law hereinbefore cited.
Therefore, the defendant, by reason of the plaintiff's refusal to make the deposit required, has an absolute right under the statute to cut off his gas. The order appealed from restrains the defendant from exercising that statutory right. Upon this state of facts the judicial discretion of the learned Special Term was improperly exercised. The plaintiff is in no position to ask the intervention of a court of equity in his behalf until he shall have first himself complied with the reasonable and legal demand of the defendant.
It follows, therefore, that the order appealed from should be reversed, with costs, and the application for an injunction pendente lite denied, with leave, however, to renew the same upon proof that said deposit has been made as required.
PATTERSON, P.J., INGRAHAM, McLAUGHLIN and SCOTT, JJ., concurred.
Order reversed, with costs, and application denied, with costs, with leave to renew as stated in opinion. Settle order on notice.