
    John A. B. Shelley, Respondent, v. The Westchester Lighting Company, Appellant.
    Second Department,
    April 19, 1907. .
    Gas — penalty for cutting off supply — written request of consumer requisite.
    The penalty for cutting off gas imposed by section 65 of chapter 566 of the Laws of 1890 cannot be recovered without the written application by. the consumer required by the statute. .
    A gas company by commencing .to supply gas without the written application does not thereby waive the requirement so as to become liable for the penalty upon discontinuing the service.
    Appeal by the defendant, The Westchester Lighting 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~14th day of May, 1906, iipon the verdict of a jury, and also ■ from an order entered in said clerk’s office on the 1st day of October, Í9Q6, denying the defendant’s motion for a new trial- made upon, the minutes.
    
      Odell L. Tompkins, for the appellant.
    
      John Brooks Leavitt, for the respondent.
   Miller, J.:

This is an action to recover the penalty provided by Laws of 1890, chapter 566, section 65. The defendant commenced supplying -the plaintiff gas April 28,1900, on his oral application ; a dispute having arisen over a bill, on January 11, 1901, it removed the meter and discontinued said supply. The plaintiff made no written application, but waited 450 days and then sued to recover the penalty of ten" dollars and five dollars per day. The dispute over the bill' has been resolved by the jury in favor of the plaintiff, and the only question now involved is whether' the plaintiff can maintain this action without first having made the written application provided by statute.

The learned counsel for the respondent contends that by commencing to supply gas without a written application, the defendant waived it and became liable for the penalty immediately, upon discontinuing the service. He admits that the precise question is an open one, but contends that the logic of Meiers v. Metropolitan Gas Light Co. (11 Daly, 119) requires a decision in his favor. That case only decided that where a proper written application was made - the gas company became liable for the penalty not merely for a refusal to supply gas on the application, but for the failure to continue the supply thereafter, and so this court, in this department, has' recently decided (Hoch v. Brooklyn Borough Gas Co., 117 App. Div. 882), but that falls far short of deciding that a plaintiff can recover under a highly penal statute without complying with its plain provisions. I am unable to understand how the doctrine of waiver, can be invoked in this case, and our attention is called to no authority having the remotest application to such a case.

, If the question involved some contractual obligation the argument made would apply, but we cannot extend this penal statute by implication, nor by construction do away with the necessity of complying strictly with the conditions upon which the right to a penalty depends. While there is no case decisive of the question, I think the discussion in Jones v. Rochester Gas & El. Co. (168 N. Y. 65) tends to support the appellant’s contention. That case decided that the penalty though continuous was single and. that but one recovery could be had; hence, after' bringing one action the plaintiff could not maintain another without making a new application so as to' set a new default running. Judge Cullen (at p. 69) said : “ After bringing the first action lie could renew his application and set a new default running against the defendant. This latter course would apprise the defendant that’ . the plaintiff still was - desirous of receiving gas and notified it that further refusal was at its peril.” In other words, the default contemplated'by the statute is.only set running by observance of the prescribed condition, to wit, a written application which will apprise the defendant that, á further refusal will subject it to the peril of incurring the penalties prescribed, and undoubtedly that was' one of the purposes of requiring such written application. The respondent contends that this construction defeats the purpose of the statute ; not at all. The. statute gives the consumer the benefit of the penalty and it imposes no hardship on him by requiring a' .written application if he intends to claim the penalty. I think it is obvious that the statute was intended not so much to compel the company to supply gas in the first instance as to put a weapon in the hands of the consumer which would put him on a more equal footing with the company when disputes should arise over the payment of bills; if so, the statute in plain words requires the consumer to give the corporation notice in writing of his intention to usé that weapon. That this was at léast one of the. purposes of the statute is suggested by the requirement that the-applicant pay all sums due from him to the corporation. The penalty is-so severe that it must have been assumed by the framers of the statute that just as the company had -before the statute been able without any litigation to cornpél -compliance with its exactions by the simple method of removing the meter, so after the statute the consumer by the simple method of serving a written notice would be able'to obtain a supply of gas without complying ■ with unjust' and unfounded demands, The plaintiff’s long delay before beginning suit is suggestive to me of a desire for money rather than gas, aníl I do not think the. statute was intended to satisfy that desire. '

I advise a reversal of tile judgment and' order.

Hikschberg, P. J., Woodward, Jenks and Rich, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide .the event.  