
    S & D Thrift Stores, Inc., Appellant, v Con Edison, Also Known as Consolidated Edison of New York, Inc., Respondent.
    Submitted January 15, 1982;
    decided February 23, 1982
    
      APPEARANCES OF COUNSEL
    
      Bruce S. Reznick, Jack J. Albert and Robert Long for appellant.
    
      Joseph J. Klem and Ernest J. Williams for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified by remitting the case to Trial Term for assessment of damages on Consolidated Edison’s first counterclaim, and, as so modified, should be affirmed, with costs.

We agree with the Appellate Division that, it being undisputed that plaintiff’s electric meter was tampered with and that plaintiff was aware of that fact, Consolidated Edison was entitled to recover for the service actually used by plaintiff, without regard to who caused the tampering. Plaintiff’s contention that Consolidated Edison cannot recover on such a theory because not pleaded overlooks paragraph 18 of the counterclaim. Moreover the evidence presented no triable issue of fact on the question of liability. It was, therefore, proper to direct judgment for Consolidated Edison on that counterclaim.

The situation is different with respect to damages, however. Plaintiff demanded a jury trial on the counterclaim and Consolidated Edison by failing to object to a jury agreed to submission of the determination of the amount owed as an issue for them. We, therefore, have no occasion to address whether that submission was proper in view of the prior administrative proceeding before the Public Service Commission (see 16 NYCRR Part 11) and plaintiff’s failure to seek review of that determination. There clearly was a triable issue for the jury concerning amount of damages: the propriety of the test period used which was at the end of the five-year period during which the meter functioned improperly and was atypical, according to plaintiff’s testimony, both as to time (hours the store was open were 50% greater than the rest of the year) and area to be lighted (from the beginning to the end of the period the area of the store increased eightfold). The case must, therefore, be remitted for jury trial on the damage issue.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order modified, with costs to appellant, and case remitted to Supreme Court, Kings County, for further proceedings in accordance with the memorandum herein and, as so modified, affirmed.  