Fortescue v. Kings County Lighting Co.

Appellate Division of the Supreme Court of New York

Fortescue v. Kings County Lighting Co.

128 A.D. 826, 112 N.Y.S. 1010, 1908 N.Y. App. Div. LEXIS 590

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 20, 1908

StatusPublished

Cited by1 cases

This text of 128 A.D. 826 (Fortescue v. Kings County Lighting Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fortescue v. Kings County Lighting Co., 128 A.D. 826, 112 N.Y.S. 1010, 1908 N.Y. App. Div. LEXIS 590 (N.Y. Ct. App. 1908).

Pincite

Opinion

Gaynor, J. :

The workmen of the defendant went into the cellar of the house occupied by the plaintiff as tenant and changed the old gas meter for a new one without first getting his permission. This was on April 26th, and the plaintiff moved out on May 6th following; and still he was given a judgment of .$150 damages by the Justice. He was not entitled to more than nominal damages. The plaintiff and his wife testified that the cellar door was fastened on the inside by an ordinary hook and staple when closed, and that after the defendant’s men were there the hook would not go down into the staple, being short in reach. The wife said the door was fastened the night before. They did not say the staple had been pulled out and put back; the husband said- he did not look to see; all they said was that the hook would not go down. This was the only evidence. of forcing an entrance. The two men testified that they rang the bell and knocked at the front door, and getting no response they found the cellar door open and went in. The wife is very deaf, but the husband was also in the house at the time. The defendant was [827]*827engaged in changing all the meters in thát neighborhood. The preponderance of evidence is that the men did not break in. In the case of Reed v. New York & Richmond Gas Co. (93 App. Div. 453), the company sent its men to remove a meter unless the householder paid a bill which they claimed of him, and the men broke in and removed the meter. The present case is very different. The company had the right to change the meter, although it was a technical trespass in going into the cellar without getting permission of the householder, or complying with section 67 of the Transportation Corporations Law in default thereof.

The judgment should be reversed and a new trial granted.

Woodward, Hooker, Rich and Miller, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.

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Gaynor, J. :

The workmen of the defendant went into the cellar of the house occupied by the plaintiff as tenant and changed the old gas meter for a new one without first getting his permission. This was on April 26th, and the plaintiff moved out on May 6th following; and still he was given a judgment of .$150 damages by the Justice. He was not entitled to more than nominal damages. The plaintiff and his wife testified that the cellar door was fastened on the inside by an ordinary hook and staple when closed, and that after the defendant’s men were there the hook would not go down into the staple, being short in reach. The wife said the door was fastened the night before. They did not say the staple had been pulled out and put back; the husband said- he did not look to see; all they said was that the hook would not go down. This was the only evidence. of forcing an entrance. The two men testified that they rang the bell and knocked at the front door, and getting no response they found the cellar door open and went in. The wife is very deaf, but the husband was also in the house at the time. The defendant was [827]*827engaged in changing all the meters in thát neighborhood. The preponderance of evidence is that the men did not break in. In the case of Reed v. New York & Richmond Gas Co. (93 App. Div. 453), the company sent its men to remove a meter unless the householder paid a bill which they claimed of him, and the men broke in and removed the meter. The present case is very different. The company had the right to change the meter, although it was a technical trespass in going into the cellar without getting permission of the householder, or complying with section 67 of the Transportation Corporations Law in default thereof.

The judgment should be reversed and a new trial granted.

Woodward, Hooker, Rich and Miller, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.

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Bluebook (online)

128 A.D. 826, 112 N.Y.S. 1010, 1908 N.Y. App. Div. LEXIS 590, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fortescue-v-kings-county-lighting-co-nyappdiv-1908.

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