
    The Independent Owners Garage Company, Appellant, v. Oscar A. Hirsch, Doing Business as Electrical Consumers Adjustment Co., Respondent.
    (Supreme Court, Appellate Term, First Department,
    June, 1913.)
    New trial — when ordered — action to recover money paid by plaintiff under contract — evidence.
    Where, upon the trial of an action to recover money paid by plaintiff, the owner of an automobile garage, under a contract by which defendant guaranteed a saving of at least ten per cent upon plaintiff’s lighting bills or money refunded, it was established that no saving of any kind was made, and an excuse attempted to be proven by defendant was without merit, a judg- . ment in his favor will be reversed and a new trial ordered.
    Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, fifth district, rendered in favor of the defendant upon a trial by the court without a jury.
    Dunlop & Smith (Reginald Berber Smith, of counsel), for appellant.
    David Bernstein, for respondent.
   Page, J.

The action was brought to recover seventy-five dollars paid by the plaintiff, owner of an automobile garage, to the defendant.

The contract between these parties was explicit and was drawn and accepted in duplicate as follows:

“ We request you to make such inspection, as may be necessary, of our electric installation, for the purpose of determining correctness of charges for current, and agree to pay your inspector seventy-five dollars on presenting certificate of inspection. You guarantee a saving of at least ten per cent, or agree to refund the fee paid.
It is further understood and agreed that upon said payment, without extra charge, you will obtain the cheapest contract for our electric current, also test our meters and examine motors whenever necessary and audit our bills for one year from date, as they are presented to you monthly. Also audit all bills for past five months and guarantee to obtain rebates on all overcharged bills to date, before the termination of this contract, or to refund the fee paid herein.”

At the bottom of the contract is printed in heavy type Not responsible for any agreement made with solicitor other than stated herein.”

It is quite evident from the wording of the contract that the saving of ten per cent, was the inducement which led the plaintiff to enter into the agreement and pay the fee of seventy-five dollars. The inspection of his plant by the defendant was merely incidental to the saving and a means whereby it was to be brought about. The inspection alone was of no value to the plaintiff. The defendant expressly guarantees a saving of ten per cent, or agrees to return the money. No attempt was made at the trial to show that any saving whatever in the plaintiff’s light bills had been accomplished by the defendant, to rebut the plaintiff’s testimony that no saving was made. On the contrary the defendant attempted to prove an excuse for his failure to reduce the bills in that he made certain recommendations to the plaintiff to change his lamps from carbon burners to tungsten or tantalum, which he says would have caused a reduction in the bills had the plaintiff followed his recommendations. The plaintiff’s reply to this attempted defense is that his contract did not require him to make any changes in his lights and nothing of the kind was contemplated by the parties. Any man at all familiar with electric lights knows that he could make a saving in his lighting by replacing the old style of lamps with tungsten burners and it required no seventy-five dollars inspection by the defendant to make the -fact known to the plaintiff. He testified that he already knew it, and only refrained from making the change because the tungsten lamps in his opinion broke too easily. A single reading of the contract demonstrates clearly that the reduction guaranteed by the defendant was to arise from keeping a closer check upon the bills of the Edison Company, by testing the meters, examining motors, obtaining a better contract and auditing bills. The contract says clearly that the inspection is to be for the purpose of determining correctness of charges for current and any recommendations made by the defendant to the plaintiff as to changing his lights and installing a new system are immaterial.

The contract guarantees a saving of at least ten per cent, upon lighting bills of money refunded. It is proved that no saving of any kind was made and the excuse offered is without merit. The judgment is absolutely unsupported by the evidence and should be reversed and a new trial ordered, with costs to appellant to abide the event.

Gut and Gerard, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  