
    Becky Levine, Respondent, v. The Brooklyn Union Gas Company, Appellant.
    Second Department,
    October 30, 1911.
    Gas and electricity — corporation — turning off gas supply — burden of proof — payment of account ■ — sufficiency of tender.
    The penalty imposed by séction 63 of the Transportation Corporations Law upon a gas light company which refuses to supply gas to a customer may be recovered by one whose existing supply has been unlawfully cut off. ' '
    Where in ah action to recover of a gas company the penalty for cutting off an existing, supply against the wish of the customer, plaintiff proves the discontinuance of the service,. the burden is on the company to justify its conduct;
    Where a lighting-company cuts off a gas supply on the claim that its customer has refused to pay an indebtedness for gas consumed, it is incumbent upon it to show'the existence of the indebtedness and a refusal to pay in order to justify its act.
    Where it is conceded that the customer tendered a two-dollar bill in payment of the current gas account of one dollar and sixty cents, and that. the defendant refused to accept the same unless certain alleged arrears, which had in fact been paid some time before, were also, discharged, and, upon plaintiff’s refusal to do so, turned off the gas, it is not necessary for the consumer to keep her tender good or to pay her money into court in order to hold the company for the statutory penalty.
    
      It seems, that a tender of a two-dollar bill in payment of one dollar and sixty cents -is not good -if the creditor takes the objection that it was required to make change, but where no such objection is made the tender is sufficient.
    . Appeal by the defendant, Thé Brooklyn Union G-as Company, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, rendered on the 3d day of April, 1911, and also from an order' ' denying the defendant’s motion for a new trial.
    
      Francis L. Durk, for the appellant.
    
      George Tonkonogy, for the respondent.
   Carr, J.:

This is an appeal from a judgment of the Municipal Court in the borough of Brooklyn in favor of the plaintiff in an action to recover a statutory penalty against the defendant for cutting off the plaintiff’s gas supply. The gas supply was cut off because the plaintiff refused to pay a bill rendered by the defendant in the sum of one dollar and sixty cents for current supply, and the sum of three dollars for arrears for a supply furnished to the plaintiff at her former place of residence. She testifies that she tendered the amount of the current bill, one dollar and sixty cents, in cash, and that the defendant’s agents refused to accept it unless the alleged arrears were paid also. It is now conceded that the charge of arrears was unfounded and was due to a clerical error on the part of the defendant in failing to make a proper credit in favor of the plaintiff. ■ No doubt the plaintiff did lie by and allow a considerable penalty to accumulate, perhaps with the purpose of mulcting the defendant for its clerical error, but we cannot reverse the judgment simply for this reason, if such was the reason. The whole issue fought out at the trial was whether the plaintiff did actually tender the amount really due. She swore positively that she did so, and the evidence offered by the defendant was simply negative in character. No reason suggests itself why the jury’s finding on this point should be disturbed as- against the weight of evidence. It is urged, however, that as she did not plead willingness to keep the tender good nor pay the. money into court to the credit of the action, the former tender was not sufficient to support a cause of action for a penalty. She testified that when the defendant’s man called to cut off the gas she'offered him a two-dollar bill, but that he refused to take it' unless the whole amount of the defendant’s claim was paid. The amount actually due was one dollar and sixty cents The defendant, however, did not reject the tender on the ground that it was not required to “make, change.” Technically, a tender of a two-dollar bill'in payment of one' dollar and sixty cents might not be good, if the. defendant had objected on that ground, but there is no claim of that. The point most relied upon is that neither by her complaint did she - offer to keep her tender good, nor did she pay the money into court and thus'keep it good. This point was raised at the close of the' plaintiff’s proofs on the motion to dismiss, and, if it be of importance, it was taken seasonably. The learned trial court held, however, that where the fighting company cut off a gas supply on a claim that its customer had refused. to pay an indebtedness for gas consumed, it was incumbent upon it to show the indebtedness and a refusal to pay in order to justify its discontinuance of service. The question of penalty is wholly statutory in origin. Its decision depends upon the interpretation of sections 62 and 65 of the Transportation Corporations Law (Consol. Laws, chap. 63; Laws of 1909, chap. 219). Section 62 relates apparently to the circumstances under which a consumer may compel the beginning of a supply of gas, and prescribes a penalty for a refusal to furnish the supply, and section 65 relates to the circumstances under which the fighting corporation may discontinue an existing supply. It has been held by this court in Hoch, v. Brooklyn Borough Gas Co. (117 App. Div. 882) that the penalty prescribed in section 65 of the former Transportation Corporations Law (Gen. Laws, chap. 40; Laws of 1890, chap. 566), which has been re-enacted by section 62 of the present statute, applies not only to a refusal to begin a supply of gas, but likewise applies when the existing supply of a consumer is cut off unlawfully. The question, then, is simply one of burden of proof. Where an existing supply is cut off by the fighting corporation, against the will of the consumer, must the consumer show that the fighting company’s act was without justification, or must the lighting company justify its conduct ? It has been held that where, the fighting corporation seeks to cut off an existing supply of a consumer, the burden is on the corporation to justify its act. (Schmitt v. Edison Electric Illuminating Co., 58 Misc. Rep. 19; affd., 125 App. Div. 909.) The defendant neither pleaded nor sought to prove any justification in cutting off the plaintiff’s gas supply. The fact of a tender of all moneys actually due being established at the trial, the conduct of the defendant was clearly unlawful, and the statutory penalty attached to its acts. Under these circumstances it may not be urged, even should such be the case otherwise, that the plaintiff’s right of action depended in any way upon paying the moneys due into court to keep the tender good. This is not a case where the rights of the parties rest wholly upon a voluntary agreement between them. The defendant had not simply a right to supply if it saw fit, but it had a statutory duty to supply from which it could not escape except under defined circumstances.

The judgment should he affirmed, with costs.

Jerks, P. J., Thomas, Woodward and Rich, JJ., concurred.

Judgment and order of the Municipal Court affirmed, with costs.  