
    CENTRAL NEW YORK TELEPHONE & TELEGRAPH CO. v. AVERILL et al.
    (Supreme Court, Appellate Division, Fourth Department.
    January 6, 1909.)
    Appeal from Trial Term, Onondaga County.
    Action by the Central New York Telephone & Telegraph Company against Charles S. Averill and another. From part of a judgment for plaintiff, plaintiff appeals. Reversed, and new trial granted.
    Argued before MCLENNAN, P. J., and SPRING, WILLIAMS, KRUSE, and ROBSON, JJ.
    Edwin Nottingham, for appellant.
    A. H. Cowie, for 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, and the decision in that case leads to a reversal of the judgment in this action so far as appealed from.

Judgment, so far as appealed from,. reversed, and new trial granted, with costs to appellant to abide event, upon the opinion in an action between the same parties delivered at the present term. 114 N. Y. Supp. 99. All concur, except MCLENNAN, P. j., who dissents.  