I think there can be no *405doubt about the authority of this court to direct the respondents to furnish gas to persons who under provisions of théir charter have a right to receive it, and who offer to comply with the general conditions on which the company supply others.
They possess, by virtue of their charter, powers and privileges which others cannot exercise, and the statutory duty is imposed upon them to furnish gas on payment of all moneys due by such applicants.
We are left, then, to inquire whether the relator was in a condition to demand from the company this supply.
It appears by the papers used on the motion, that the relator commenced taking gas in 1858, at Ho. 61 Seventh Avenue, and was supplied with gas by the company until the 28th of December, 1861; that he paid for the gas so received up to the 19th of August, 1861, and that for gas furnished after that date he has not paid.
It also appears that in January, 1865, the respondent sued the relator, and obtained judgment against him for the amount due therefor, which still remains unpaid.
In May, 1864, the relator applied to the company for gas at 121 West Sixteenth street, which was furnished to him by the company without objection, on account of the former indebtedness, until the 9th of February, 1865, when the company shut off the supply of gas, and refused to furnish any more. It also appears that the relator, in answer to claim of payment of the indebtedness, represents himself insolvent and unable to pay the judgment.
There is nothing in the charter of the company which requires them to make the objection that the applicant was indebted to them at the time of the first application.
It would be unreasonable to suppose that in every instance they conld ascertain such indebtedness. If at any time the party is so 'indebted, the company may refuse to furnish, and more especially should this be so, when the relator avows his insolvency and his inability to pay for gas furnished previously.
The attempted denial of liability for this bill by the relator will not aid him. The company have obtained a judgment against him; This is not disputed, and no attempt is made by him to set it aside.
So long as that remains in force, it is conclusive against him. The order appealed from should be affirmed, with ten dollars costs.
Present, Ingraham:, P. J., Leonard, and Barnard, JJ.