
    Louis Halpern et al., Appellants, v. The New York Edison Company, Respondent.
    (Supreme Court, Appellate Term,
    December, 1908.)
    Electricity—Charges — Eeasonableness and legality of charges.
    An electric lighting company furnishing electricity at the statutory rate and furnishing the lamps and keeping them in repair without extra charge, by making an agreement to allow certain customers ten per cent, in consideration of their furnishing and keeping in repair their own lamps, where the business of such customers is such that the company cannot properly control their lamps, or the lamps are worn out, destroyed and injured by the use of other current tha,n that furnished by the company, or the breakage or loss of lamps is far greater than in the case of ordinary customers, does not thereby become liable to make a like discount to a customer who voluntarily furnishes and keeps in order his own lamps but whose business is not such as to produce the extraordinary cost of lamp renewal which occurs in the business of the customers to whom such discount is made; and its refusal to make such discount to such consumer is not unreasonable nor in contravention of law.
    In consideration of this question account should be' taken of the fact that the plaintiffs with whom a contract at wholesale rates had been made fell into the retail class of consumers and lost the benefit of the wholesale rate by a reduction of apparent consumption caused by their filching the company’s current for several months.
    Appeal by the plaintiffs from a judgment of the Municipal Court of the city of New York, sixth district, borough of Manhattan, in favor of the defendant.
    Horace B. Hord, for appellants.
    Beardsley & Hemmons, for respondent.
   Ford, J.

In consideration of the plaintiffs’ agreeing to consume at least 2,000 kilowatt hours of electricity per month for ten months each year, and to furnish their own lamps, defendant agreed to supply the electricity at a lower rate than is charged smaller (retail) customers. Through, the circumstances that they were filching the defendant’s electric current for several months, their recorded consumption fell so low that it would cost less at the regular retail rate for current actually consumed than it would cost to pay for the guaranteed 2,0 0'0 kilowatt hours at the lower wholesale rate provided in the original contract. The defendant, therefore, changed from the wholesale rate and thenceforward charged only for current actually consumed at the regular retail rate of ten cents per kilowatt hour.

Plaintiffs claim that this retail rate is higher than that paid by other retail customers in like circumstances. It appears that a uniform rate of ten cents per kilowatt hour is charged retail customers,— the defendant furnishing the lamps and keeping them in repair,-—-with this exception: A discount of one cent, per kilowatt hour (ten per cent.) is allowed to theatres and music halls, break down customers (those owning their own plant and using the defendant’s current only occasionally), and buildings in process of construction. The reasons for the exceptions, which are based upon experience, are: As to the first, it is impossible for the defendant to properly control their lamps which are broken and carried away by the performers and others, so the cost, of maintenance is extraordinarily increased; as to the second, the lamps are worn out and injured or destroyed for the most part in the use of current other than that of the defendant and the cost of maintenance rendered out of all proportion tó the comparatively small amount of defendant’s current used; and, as to the third, the breakage and loss of lamps, on account of the nature of the business, are far greater than in the case of ordinary retail customers. Hence the discount of ten per cent, is allowed in lieu of furnishing and renewing the lamps.

Although none of the circumstances which produce- this extraordinary cost of lamp renewal is shown to exist in connection with the plaintiffs’ use of electricity, they insist that, inasmuch as they furnish their own lamps, they too should be allowed the ten per cent, discount and that defendant’s refusal to allow it to them constitutes illegal discrimination against them.

In the first place it should not he overlooked that they furnished the lamps in the first instance when they were wholesale customers and fell from that class into the retail class through their theft of the defendant’s electricity. The furnishing and renewing of the lamps have been gratuitous on their part. Had the defendant refused to furnish lamps as well as electricity the same as it does to other retail customers at ten per cent, per kilowatt hour, they would have just cause for complaint. There is no evidence of such discrimination however. To leave the option with them to furnish their own lamps and then to compel the defendant to grant them a ten per cent reduction, would be to give every other retail customer the same right and to brand the defendant’s mode of dealing with its -large army of retail customers as illegal. The maximum price of electricity is fixed by statute at ten cents per kilowatt hour — no mention being made of the item of lamp renewal. The defendant’s charge is that fixed by statute, the furnishing and renewal of lamps included. We find no warrant for holding that the adoption of this method of dealing with the public is not fair and reasonable. The peculiar situation in which plaintiffs find themselves because of their own wrongdoings does not warrant the upsetting of defendant’s established and entirely proper business methods.

The judgment appealed from should be affirmed, with costs.

Giegerich, J., concurs; Hendrick, J., in result.

Judgment affirmed, with costs.  