(dissenting):
The plaintiff sues under section 65 of the.Transportation Corporations Law* (2 R. S. [9th ed.] 1356), to recover the penalties therein provided for the refusal or neglect of the defendant to supply him with gas at his office in Mt. Vernon. He had occupied a house formerly occupied by one McNair, and moved out the last of December, 1895, paying the company for all gas burned up to January 1,1896. There was no evidence to show that any gas was consumed by the plaintiff in the house thereafter, but the defendant set up in the answer and claimed at the trial that gas had been consumed in January, and that the plaintiff was liable therefor to the extent of one dollar and sixty five cents, which he refused to pay. There is no evidence in the record that any sum whatever was due from the plaintiff to the defendant.
The statute authorizes the corporation to require from any person desiring to be supplied with gas, payment “ of all money due from him to. the corporation” (§ 65), and the deposit of a “reasonable sum of money according to the number and size of lights used or required, or proposed to be used for two calendar months by such person.” (§ 66.)
The plaintiff notified the defendant in writing to supply his office with gas, and offered “ to comply with any requirements of your company under the statutes.” This was a sufficient compliance with the statute. (Jones v. Rochester Gas & Electric Co., No. 1, 7 App. Div. 465.) The defendant notified the plaintiff that it required the deposit of five dollars. If on the trial this had been followed by evidence that this amount was a reasonable deposit for the amount of gas which the plaintiff proposed to use, he would have been required to tender or deposit it, but in the absence of such proof it cannot be held that the plaintiff .was required to make the deposit. There is no competent evidence in the case as to what such reasonable sum was. There was an offer to show by a witness that five dollars was a reasonable sum, but it is clear that the witness was not competent on *174this subject, as he did not' know how many lights were required, or the size of the burners; and this evidence. was properly excluded,, for the statute provides that the sum demanded must be- reasonable,, according to the lights proposed to be used for two calendar months.. It was not sufficient to show, that five dollars, was the sum generally required of consumers. The only evidence was that, five dollars was-a reasonable sum to be demanded from any consumer for two months-; The witness by whom the defendant offered to-, prove that five dollars was a reasonable amount, stated that he- did not know hoy many gas burners the plaintiff required or would use, or the size of' the supply pipe, and it was no error to exclude his evidence as to-what was a reasonable sum to demand of the plaintiff as a deposit;
Each party moved for the direction of a. verdict in his favor, and the court directed a verdict in favor of the plaintiff Thereafter the. defendant excepted and asked to go to the jury on the question whether five dollars was a reasonable price or exaction, under the-statute, for the gas to be consumed for a period of two calendar-months, and on the question whether or not gas- was consumed in the house formerly occupied by McNair. In Switzer v. Norton (3 App. Div. 173) this court held that a party was not- concluded from; asking to go to the jury on a question of fact because he had previously asked the court to direct a verdict in his favor; but. under the views of the evidence which we have expressed there was, no testimony which raised a question of fact on either proposition,; and we think the, motion was properly denied.
The judgment, should be affirmed.
Judgment reversed and new trial granted, Posts to abide the event.-
Laws of 1890, chapter 566. — [Rep.