
    Frank A. Bennett, Respondent, v. Eastchester Gas Light Company, Appellant.
    
      Form, of a demand to be furnished, with gas —a submission of a question to the jury cannot be objected to on an appeal by the party ashing it.
    
    A written application, made to a gas company by a tenant of offices from which ' the meter had been removed at the instance of the previous tenant, to be supplied “ with gas for lighting said offices as heretofore supplied, by the return of the meter to said offices as the same was placed on the first of the present month,” . is sufficient to support an action to recover the penalty imposed by section 65 of the Transportation Corporations Law (Laws of 1890, chap. 566) for a refusal to comply with such request.
    Where, at the instance of the gas company, the trial court submits to the jury the question as to the reasonableness of its demand for a deposit of five dollars pursuant to section 66 of- the Transportation Corporations Law, as a condition precedent to its furnishing a meter to the consumer, the company cannot, on appeal, claim to have been prejudiced by such action of the court.'
    It is not the province of an appellate tribunal to relieve a litigant from the ' consequences of a situation which it deliberately invited in opposition to a favorable ruling of the trial court.
    Appeal by the defendant, the Eastohester Gas Light Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 5th day of October, 1899, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 25th day'of October, 1899, denying the defendant’s motion for a new trial made upon the minutes.
    
      John M. Bowers [W. H. Van Benschoten with him on the brief], for the. appellant.
    
      Roger M. Sherman, for the respondent.
   Hirschberg, J.:

The action is brought against a gas company to recover the penalty imposed by section 65 of the Transportation Corporations Law (Chap. 566, Laws of 1890) for a failure to supply the plaintiff with gas, at, his office, room No. -2 in the post office building, at Mount Vernon, N. Y. The plaintiff’s occupancy of the office- began-about January 31, 1897. On the fifth day of February he attempted to light the gas and discovered that there was no flow. It appeared on the trial that the meter had been removed a few days previously by the defendant at the request of the prior occupant of the office. On the sixth day of February the plaintiff called at the office of the defendant, and applied to the manager to have the meter restored to the office, and to have gas supplied for his Use. Subsequently, on the same day he served on the defendant a written application to the same effect. There is no dispute that the defendant failed and refused to restore the meter and to supply gas, but there is a serious dispute as to the reasons assigned for such failure and refusal at the time the plaintiff made his application. It appears that the defendant had a disputed claim against the plaintiff for a small sum for gas alleged to have been supplied to the defendant at his residence some years before. The plaintiff testified that when he asked for gas.to be furnished at his office, the manager demanded as precedent conditions that he deposit the sum of five dollars, and also that he pay this disputed bill. He further testified that he then '.tendered the five dollars, but refused to pay the bill. The defendant’s witnesses testified on the other hand that the only condition named was the deposit of five dollars, which the plaintiff neither tendered nor offered to pay, and that no demand was made for payment of the disputed bill. The learned trial justice submitted to the jury the issue of fact thus raised, instructing them that if the refusal to furnish gas was based upon the failure to pay the former bill and the plaintiff owed the bill, the defendant was legally justified in its refusal. The verdict of the jury must be assumed to involve a decision of this controversy in favor of the plaintiff. The evidence ‘ was sufficient to warrant the jury in concluding that the defendant had no rightful claim against the plaintiff for gas furnished at the latter’s residence, and there was also sufficient evidence to warrant the conclusion that the payment of this demand was exacted by the defendant as a condition of supplying gas to the plaintiff’s office.

The defendant contends, however, that the written application served by the plaintiff was insufficient. It is couched in almost the identical language as the one under consideration in Jones v. Rochester Gas & Electric Co. No. 1 (7 App. Div. 465, 469) and which was there held to comply with the statute. It is true that in that case the applicant was the individual from whom the meter had previously been taken away,' while in this case- the applicant was a succeeding tenant, but the difference is immaterial. The defendant had a few days before supplied gas to the office occupied by the plaintiff, and, therefore, knew the nature and extent of the service, and the plaintiff’s application in terms required that he be supplied “ with gas for lighting said offices as heretofore supplied, by the return of the meter to said offices as the same was placed on the first of the present month.” It thus appears that what the plaintiff desired was that the defendant should light his offices as they were lighted during the occupancy of his predecessor, and written notice of this desire was communicated to the defendant with reasonable precision and exactness. The defendant did not claim to be in doubt as to the extent of the service required as was the case in Andrews v. North River Electric Light & Power Co. (23 Misc. Rep. 512). No form of application is prescribed by the statute, and,' therefore, one which fairly and plainly states the service required without ambiguity and with reasonable certainty should be deemed sufficient.

The defendant offered evidence designed to show that the demand for a deposit of five dollars was reasonable within the meaning of section 66 of the Transportation Corporations Law (Chap. 566, Laws of 1890), and various errors are assigned in the ruling of the learned trial justice relating to such evidence. As the plaintiff had testified that he tendered the deposit he was hardly in position to raise the question upon the trial that the demand so acceded to was unreasonable, and on a previous appeal this court had held that the burden of proof was on the plaintiff. (Bennett v. Eastchester Gas Light Co., 40 App. Div. 169.) We find no errors in the riding of the court upon the evidence in question. Indeed the court endeavored to eliminate from the case the question of the reasonableness of the demand for a deposit, saying: The question of reasonableness is not in this case. I rule this testimony o.ut. The plaintiffs' testimony is that the refusal was not put on that ground at all. The refusal was-put on the ground that he would not pay the bill for the residence he formerly occupied.” To this the defendant’s counsel, Mr. Swits, responded: “ The defendant excepts to the ruling of the court; ” whereupon the court said : “ The ruling is in your favor. If you do not want it I will submit it to the jury. I will submit the question to the jury if the defendant asks me to.” The court did accordingly submit to the jury the question of the reasonable-, ness of the demand for a five-dollar deposit, without objection or exception on the.part of the defendant. But as the jury were told in that connection that the plaintiff had accejited the amount as reasonable, that in the view of the court it was his duty to offer and tender the amount so exacted, and that if they found that the plaintiff had failed or neglected to make tender of this deposit, he could not recover, it is difficult to see how the defendant has been prejudiced. If, however, the defendant has been prejudiced, that is to say, if the verdict may have been based on the theory that there was no demand for the payment of the old bill, but only for a deposit of five dollars, which in the view of the jury was an unreasonable sum under the circumstances, the fact remains that it is not the province of an appellate tribunal to relieve a litigant from the consequences of a situation which it deliberately invited in opposition to a.favorable ruling of the trial court.

The judgment and order should be affirmed.

All concurred

Judgment and order affirmed, with costs.  