Sickles v. Manhattan Gas-Light Co.

Dwight, J. — I think this order should be affirmed on the grounds and for the reasons so well stated in the opinion of the learned judge at special term. That statement, I think, fully justifies the exercise of the discretion of the court to con [305] tinue the injunction till the trial of the issue of fact joined in the action. It may, however, be added to the very impartial statement of facts contained in the opinion below that the proof of an overcharge for gas is not confined, as urged by counsel for the appellant, to inference from a comparison of the amounts charged to the plaintiff during different periods of his occupancy of the apartments ; on the contrary, the affidavit of Sweeney, on the part of the defendants, shows that the plaintiff was charged with 100 feet of gas as registered by the meter between March seventeenth and April eighteenth a portion of the time covered by the plaintiff’s absence from the country, and during which period, as the undisputed evidence shows, the apartments were closed and the gas was turned off between the meter and the main. Whether this registering was due to a fault in the meter, to an imperfection in the cutoff or to surreptitious use of gas by some person in the absence of the plaintiff, or whether the indication of the meter was erroneously read or recorded by the “ indexer ” may be the subject of inquiry on the trial of the action-. The amount of the overcharge is very small, but since the- defendants’ right to cut off the plaintiff’s gas is given by statute, and depends upon the sole condition of the plaintiff’s refusal to pay for gas actually consumed, the amount of the overcharge, if one be clearly established, is immaterial to the inquiry. I am in favor o*f affirming the order upon the opinion of justice Lawrence at special‘term. Davis, P. J., and Brady, J., concur-