
    Central New York Telephone and Telegraph Company, Appellant, v. Charles S. Averill and G. Fred Gregory, Respondents.
    (No. 2.)
    Fourth Department,
    January 6, 1909.
    See head note in Central New York Tel. & Tel. Co. v. Averill, No. 1, ante, p. 752.
    Appeal by the plaintiff, the Central New York Telephone and Telegraph Company, from part of a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Onondaga on the 25th day of March, 1908, upon the decision of the court rendered after a trial at the Onondaga Trial Term, a jury having been waived.
    
      
      Edwin Nottingham, for the appellant.
    
      A. H. Cowie, for the respondents.
   Spring, J.:

This action was commenced to recover $1,659 for rentals due the plaintiff for telephone service in pursuance of an agreement between the parties. There was a further demand of $119 not connected with the agreement. There was no dispute over the amount of either charge, and judgment was allowed the plaintiff for the sum of $119.

The claim of the defendants is that the contract upon which the items for rentals were founded was illegal and void, and the court so held.

The question of the validity of the agreement has been disposed of by this court in an equity action between the same parties adversely to the contention of the defendants (Central New York Tel. & Tel. Co. v. Averill, No. 1, 129 App. Div. 752), and the decision in that case leads to a reversal of the judgment in this action so far as appealed from.

All concurred, except McLennan, P. J., who dissented.

Judgment, so far as appealed from, reversed and new trial ordered, with costs to appellant to abide event.  