
    New York and Queens Electric Light and Power Company, Respondent, v. Long Island Machine and Marine Construction Company, Appellant.
    Second Department,
    January 10, 1908.
    Electricity — contract with, consumer construed — inaccurate meter — when current consumed question for jury.
    A contract to pay for electric current “at the rate of ten cents for each horsepower hour, as measured at and by the meter ” furnished by the plaintiff, only requires the consumer to pay for the actual current consumed.
    When a plaintiff suing on such contract has proved that the meter installed by it made too low a registry of the current consumed, but the defendant has shown that its machinery was incapable of consuming the amount of current estimated by the plaintiff, and that the deviations in the meter might have been caused by vibration, it is error to direct a verdict for the plaintiff. The amount of current actually used is a question for tlie jury.
    Such contract, calling for payment according to the meter reading, presupposes that the meter is reliable, and a consumer cannot be held to the letter of the contract unless the accuracy* of the meter be proved by regular and standardized inspection. * '
    Appeal by the. defendant, the Long Island Machine and Marine Construction Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 13th day of March, 1907, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 28tli day of March, 1907, denying the defendant’s motion for a new trial made up,on the minutes.
    
      Sidney F. Rawson [Paris S. Russell and John B. Merrill with him on the brief], for the appellant.
    
      George W. Schoonmaker, for the respondent.
   Woodward, J.:

The action was brought by the plaintiff, a .quasi-public corporation engaged in selling electric current for light and power, upon' an express contract made with the defendant, a manufacturing corporation engaged in repair work, in which contract the defendant agreed to pay for the electric current furnished by the plaintiff “ at the rate of ten (10) cents for each horse-power hour, as measured at -and. by the meter provided by the (plaintiff) company.” The defendant used the current and paid the monthly bills rendered therefor for a period of three years, when, on August 20, 1904, the plaintiff discovered that an error had been made in each of the pre- . vious monthly readings by the various inspectors of the plaintiff, who, having omitted a cipher in the reading of the units, had dur- . ing this entire period been rendering bills which, it is claimed, gave only about one-tenth of the current used by the defendant in this time.

The plaintiff, relying on the words of the contract, presented an additional charge for $3,828.36, or for $1,650 a year as against the annual charge of $350, which the plaintiff had paid.

It appears that the defendant for several months paid the bills made in accordance with this new reading of the meter, but it refused to pay the amount claimed by the plaintiff as due before the discovery of the error. Though the court admitted the evidence of the defendant which showed that the plaintiff’s meter was inaccurate and that the new reading of the current was altogether dis-, proportionate to'tlie horse power employed, and though the plaintiff’s witnesses testified that they had been accustomed to read the meter improperly and that such meter had never during the period in controversy been properly tested, and that when 'finally tested it"was found to be thirteen per cent fast, yet the ruling of the court was that no question of fact was presented. A verdict was, therefore, directed for the plaintiff for the full amount, with interest.

I am of the opinion that this was error. The current, as indicated by the new reading of the meter, was shown by the evidence to be sufficient to have run a horse power several times greater than the defendant used. The ruling of the court that the defendant pay “ as per meter ” ignores the express and important stipulation that tfié defendant shall pay at the rate of ten cents for each horsepower hour.” The horse-power hour is then the standard. All of the evidence shows that the meter was inaccurate and that deviations may have been caused by vibrations, and since strictly to con- ; strue the contract would here work a manifest injustice, and to place upon the defendant the burden of the plaintiff’s own carelessness and neglect the case should have been left to the jury.

The contract plainly intends that the defendant shall pay only for the amount .of electricity used by it, and whether or not the defendant received and used the amount registered by the meter was a question solely of fact. I think that the case of Sickles v. Manhattan Gas Light Co. (66 How. Pr. 314) applies. In that case it was held that the meter may be contested by other reliable testi-. naony. “ The meter,” said Justice Van Vorst in his opinion, “ has not been received by this court as conclusive of the correctness of the defendant’s claim for gas consumed by the plaintiff.”

In the case at bar, as the meter establishes a jprima facie case for the plaintiff, the, burden is upon the defendant to impeach its veracity, and if it is able to do this the issue is properly one for the jury. Under the ruling'of the court there would be no redress for the defendant if an inaccurate meter should register a consumption calling for an impossible payment. The stipulation to pay as ]:>er meter ¡nesupposes that the meter is reliable and correct; I do not see why thé defendant should be held, to this inaccurate registration and why also it should be held to account for the inac- . curate readings of the plaintiff continued by its own admission for nearly three years.- ■

The plaintiff can ask relief from its own error only to the amount of actual consumption. What this is must be determined on the basis of the horse power of the defendant.

The plaintiff cannot hold the defendant- to the letter unless it- can prove the continued accuracy of the.meter by regular and standardized inspedtion. This it has wholly failed to do and the defendant is entitled to relief. That it should be required to pay' for an amount of current vastly greater than that consumed by it would be unjust. An increase of $1,650 a year on so small a business would be manifestly ruinous.

The judgment and order should be reversed and a new trial ■ granted. . .

Jenks, Hooker and Miller, JJ., concurred.

- Judgment and order reversed and new trial' granted, costs to abide'the event.  