Rose v. New York Telephone Co.

147 N.Y.S. 1021

• Court: Appellate Terms of the Supreme Court of New York
• Decided: June 5, 1914
• Status: Published

Opinions

BIJUR, J.

[1] It is quite true that the failure to credit plaintiff with the amount of his July check may have been due only to an oversight or bookkeeping error, although the testimony on that point might warrant a finding of bad faith; but, whatever it was, it was rectified as the result of a visit of the plaintiff on August 5th. The discontinuance of the service on August 25th may have been the result of a second error, namely, failure to note the correction of the first error. But from August 25th until September 2d plaintiff so diligently and so conclusively and overwhelmingly demonstrated to any number of persons in authority in defendant’s business that the discontinuance of service was utterly unwarranted that no other conclusion seems to me to be possible than that defendant’s conduct in discontinuing the service for the 11 days complained of was in bad faith. Whether it was the result of deliberate spite or of reckless obstinacy calculated to injure the plaintiff is quite indifferent.

[2] Defendant also urges that section 103 of the Transportation Corporations Law, upon the authority of which this penalty was recovered, refers only to telephones in pay stations, and also that it does not relate to the interruption of the use of the telephone for conversation, but only to the transmission of “dispatches.” Lor the latter claim there is, of course, some basis in the language of the statute, which evidently has not been sufficiently altered during the course of its frequent amendment to accord fully with modern conditions in the telephone business. But I think that that interpretation of the law is wrong, because, while it claims to be based on the doctrine that the law is penal and should be strictly construed, it violates the fundamental doctrine that the law must be construed to have a meaning, and the transmission of “dispatches” over a telephone is meaningless, if literally read. It is true that a similar statute was so construed in Pollard v. M. & K. Telephone Co., 114 Mo. App. 533, 90 S. W. 121, but I do not find that that case has ever been followed.

In Matter of Baldwinsville Telephone Co., 24 Misc. Rep. 221, 53 N. Y. Supp. 574, it is pointed out by Hiscock, J., that the duty is simply to receive and transmit messages from a general office, but he adds:

“It seemed to be assumed by the defendant upon the argument that the statute contemplated receiving and transmitting messages through a telephone so placed (namely, as desired by the customer), and that a refusal to make such connections amounted to a failure to receive and transmit messages as required.”

In Saltzburg v. Utica Home Telephone Co., 159 App. Div. 51, 144 N. Y. Supp. 309, Kruse, J., writing for the Appellate Division in the Third Department, indicates a doubt whether the removal of a telephone from a subscriber’s premises is covered by the language of the statute.

Again, in Kevand v. N. Y. Telephone Co., 159 App. Div. 628, at page 631, 145 N. Y. Supp. 414, at page 416 (Appellate Division in the same department), the opinion by Merrell, J., calls attention to the use of the word “dispatches” and expresses the view that the Legislature “had no intention to make it applicable to a refusal on the part of a company to permit a patron to talk over a telephone.” The decision, however, is based on the fact that neither discrimination nor bad faith was proved. Of the four judges then sitting, two concurred in the result only, and Kruse, P. J., dissented, saying that the fact disclosed in the case, i. e., the refusal of the defendant to give the plaintiff, over his private telephone, connection with other subscribers, came within the inhibition of the statute.

The judgment should be affirmed, with costs.

PENDLETON, J., concurs.