
    George K. Fortescue, Respondent, v. Kings County Lighting Company, Appellant.
    Second Department,
    November 20, 1908.
    Real property—trespass — entry to install gas meter—damages.
    It is a technical trespass for the employees of a lighting company to enter a cellar for the purpose of changing meters without the permission of the tenant or complying with section 67 of the Transportation Corporations Law in default thereof.
    Where, however, the tenant moved out ten days after such technical trespass and the evidence shows that the defendant’s employees did not break in, he is entitled to nominal damages only.
    Appeal by the defendant, Kings County Lighting Company, from a judgment of the Municipal Court of the city of New York in favor of the plaintiff.
    
      John W. Searing, for the appellant.
    
      John R. Farrar, for the respondent.
   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 engaged 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.  