
    New York Telephone Company, Respondent, v. Board of Education of the City of Elmira, Appellant.
   On April 30, 1894, the city of Elmira granted to plaintiff’s predecessor, the New York and Pennsylvania Telephone and Telegraph Company, a franchise which that company accepted and one clause of which is: “ That as an additional consideration for the permission hereby granted, the said company, its successor and assigns, shall furnish and maintain for the city within one-half mile of its central office in said city and at such places as its Common Council shall direct, three free exchange telephone connections; and for all other exchange service for municipal services, shall furnish the city departments with telephones at one-half the standard rates in said city for similar services.” Prom the granting of the franchise until January 10, 1924, defendant paid one-half rates for telephone service. Defendant was not a party to the agreement. On October 3,1923, plaintiff notified defendant that the discount which it had previously received on telephone service was not obligatory on plaintiff and that thereafter defendant would have to pay the full standard rates. On January 10, 1924, defendant notified plaintiff that it was not entitled to the benefit of the one-half rate provided for in the franchise of 1894 and that thereafter it would pay the prescribed rates. It executed contracts agreeing to make such payments and actually made the same until March 29, 1930. On that date it notified plaintiff that it would not pay anything in excess of the rate specified in the franchise of 1894. Plaintiff brought this action to recover the full rates for the period between March 21,1930, and June 21, 1932. The trial court rendered judgment in plaintiff’s favor and held that defendant was not a department of the city of Elmira and by the contracts which it made with plaintiff in 1924 it waived any rights which it ever had to a discount. Judgment affirmed with costs. Rhodes, Crapser, Bliss and Heffernan, JJ., concur; Hill, P. J., dissents.  