
    John N. Moore, Respondent, v. The Champlain Electric Company, Appellant.
    
      Electric illuminating company—when not liable to a penalty for refusing to furnish a current to light a house — its duty to extend its house-lighting wire through a city is not involved — what wire the applicant must pay for.
    
    An electric illuminating company having a wire carrying a current too powerful to be used for bouse lighting within 100 feet of a dwelling, and which has no wire suitable for house lighting within 1,700 feet of such dwelling, does not incur the penalty imposed by section 65 of the Transportation Corporations Law because it refuses to light the dwelling by electricity upon the written request of the owner.
    An action by the owner to recover such penalty does not present the question whether it is the duty of the illuminating company under its charter to extend its house-lighting wires to a point within 100 feet of the dwelling in question.
    The wire, the expense of laying which section 65 of the Transportation Corporation Law permits the illuminating company to require the applicant to advance, is not the street or supply wire, but simply the service wire, viz., the wire extending from the street supply wire to the applicant’s premises.
    Chester, J., dissented.
    Appeal by the defendant, The Champlain Electric Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Clinton on the 25th day of April, 1903, upon the decision of the court rendered after a trial at the Clinton Trial Term, a jury having been waived.
    The defendant is a domestic corporation engaged in the business of furnishing light by electricity for streets and buildings in the village of Champlain, in this State. It had extended upon its poles through Locust street (a public highway in such village) a wire connected with its power house and used for the purpose of lighting such street by electricity, but such wire cannot be used for the purpose of furnishing electricity for the lighting of houses or other domestic purposes. The current of electricity that is manufactured for and distributed over this wire is intended for street lighting only. It is much too strong to be utilized for domestic purposes, and no part of it can be diverted from this wire to household uses by the use of-a transformer, or any other method applicable to the defendant’s system.
    
      The plaintiff owns and occupies a dwelling house on Locust street that is within 100 feet of the wire aforesaid, but there is no other 'wire belonging to the defendant upon such street, and no wire that could be used for lighting his house within 1,700 feet thereof.
    The plaintiff applied in writing to the defendant to light his house by electricity, and otherwise complied with the requirements of sections „ 65 and 66 of the Transportation Corporations Law (Laws-of 1890, chap. 566).
    The defendant refused to furnish the light asked for, and this action is brought to recover the penalties given by such section 65.
    The trial court ordered judgment for such penalties to the amount of eighty dollars and for costs, and from such judgment this appeal is'taken.
    
      Lucien L. Shedden, for the appellant.
    
      John H. Booth, for the respondent.
   Parker, P. J.:

It is evident that the defendant, in order to comply with the plaintiff’s request, must have erected a new wire from its power house to the plaintiff’s premises. It must have constructed a new “main,” so to speak, a distance of not less than 1,700 feet, because the wire that passed through Locust street, within 100 feet of the plaintiff’s premises, could not be at all utilized for furnishing the light that the plaintiff desired. These penalties, therefore, have been imposed upon the defendant for not properly extending its mains-through the village of Champlain; and the judgment is rendered upon the theory that it has violated the obligations of its charter, under which it was liable to furnish electric lighting to all residents of the village who demanded the same under circumstances that were just and reasonable.

After a careful examination of the statute, I have come to the Conclusion that the section in question has no application to such a situation;

Section,65 is lengthy, and it is not necessary to quote it in full. In substance, .it provides as follows : “The owner or occupant of any building or premises within one hundred feet of any main laid down "by any gas-light corporation, or the wires of any electric-light corporation,” and who has fully paid all money due from him to the corporation, may require such corporation to supply him gas or electric light, notwithstanding the fact that a prior occupant is still indebted to the corporation for gas or electric light supplied, or for meter, wire, pipe or fittings furnished to such prior occupant, unless the owner or occupant so applying has undertaken with the prior occupant, so indebted, to himself pay such indebtedness, and still refuses to do so. If, after having so requested in writing, the corporation shall refuse or neglect for the space of ten days to supply gas or electric light, the corporation shall forfeit and pay to the applicant the sum of ten dollars and the further sum of five dollars for every day thereafter during which such refusal or neglect shall continue. It is provided, however, that no such corporation shall be compelled to lay “ service pipes or wires ” through frozen ground, or such as shall otherwise present serious obstacles to laying the same, nor unless the applicant, if required, shall deposit in advance with the company a sufficient sum to pay the cost of “ his portion of the pipe or wire required to be laid, and the expense of laying such portion.” It is also provided that the applicant, if required, shall deposit a reasonable sum as provided in section 66.

Evidently the purpose of this section was not to compel a gas or , electric light company to properly extend its mains and wires for furnishing light throughout the village, and to perform its full-duty under its charter.

The right of the applicant to demand a supply of gas or light is based upon the fact that the mains or wires are already located within 100 feet of his premises. Such a statute is utterly futile to compel a gas company to properly lay its mains throughout the village. The party to whom the penalty is given can make no such complaint as that, for the statute assumes that, as to him, the main is already laid. And it is equally clear that in the case of an electric light company, it cannot be made applicable to a mere omission to properly extend its wires into such places as under its charter they ought reasonably to be extended.

It is only against such gas company as has already extended its means of furnishing gas, to wit, its “ mains,” to within 100 feet of the applicant; and against such electric light company as has already extended its means of furnishing electric light, to wit, its wires,” to within a like distance, that the penalty is given for a failure to furnish it. Hence, the section should not be interpreted as if its purpose was to compel the companies to properly extend their means of furnishing light to the inhabitants of the village, nor so that it should have one meaning as applied to gas Companies and another meaning as applied to electric light companies.

Section 6 of chapter 311 of the Laws of 1859 was originally enacted as applicable to gas companies alone; electric light companies were not then in operation. Subsequently the same provisions were re-enácted in section 65, above referred to, save that electric light companies were included in it; and as to such Companies the word “ wires ” was used in the same connection and with the same meaning as was the word ^ main ” with reference to gas companies.

As to both'such companies the meaning and purpose of the act is apparent. It had been the custom of such companies to cut off their supply of light from any premises if the occupant was in arrears in the payment of back charges for the light supplied, or fittings furnished, and to refuse to furnish any more light to such premises until such back charges were paid, even though their occupancy had passed into the control of other parties who were in no way liable for such charges. It was a method by which the companies forced the owner of premises to pay all back charges against prior occupants, although no claim against him existed therefor. This statute was passed to meet that situation, and most of its provisions are directed towards securing and adjusting the rights of both the company and the owner under such circumstances. But the act is broad enough to apply to all companies whose mains are within 100 feet of the applicant’s premises, although not connected with them, and, therefore, provisions are made in the act concerning their liability to make such connections.

The term “ service ” pipe or wire, as used in that connection, means the connection from the street main or wire to the house, and usually the expense of laying that is borne by both the company and the owner in proportions agreed upon between them, and it is as to that expense that the applicant is required to advance his proportion, if the company demand it, before he can insist on gas or light being furnished to him. Evidently this provision does not indicate that any expense in laying additional mains is expected to be borne by the company and the applicant. So the provisions of section 66 require the applicant to deposit in advance, if demanded, a reasonable sum for the light furnished or to be furnished for two months, and • requires the company to pay interest on such deposit. Such provisions do not throw any light upon the interpretation of the prior section. The money is advanced solely to secure the payment for light to be thereafter used, and has no application to the question whether the mains are already laid or to be thereafter laid.

The question then, how the phrase or the wires of any electric-light corporation,” used in section 65, is to be construed should be considered with reference to the object and purpose of the act. It should be given such a meaning as will impose upon an electric light company the same responsibility as is imposed by the word “ main ” upon a gas company; no more. None of us have any doubt but that by the word main ” those pipes were intended through which the company distributed the gas that was designed to be taken therefrom into the buildings to be lighted. So the word “ wires,” as applied to- electric light companies, was intended to designate the wires througji which was distributed the electricity with which the houses were to be-lighted. The fact that the company used another and different wire to light the streets does not change the situation. That wire does not take the place which the “ main ” takes in a gas company, nor place the electric light company in the same situation. That wire has no application to the duties which this statute seeks to secure the performance of, and hence the fact that it is within 100 feet of the applicant does not bring the company within the provisions of such section.

It is a familiar rule that statutes imposing penalties should be construed strictly in favor of the party against whom they are given (Manhattan Co. v. Kaldenberg, 165 N. Y. 7), and it seems obvious that no penalty is imposed upon either of such companies, except w’here the premises to be supplied with the light is within 100 feet of the “ main ” or “ wires ” that are the source of such supply.

Whether or not it was the duty of this defendant,'under its corporate obligations, to extend its wires for supplying lights for household purposes through Locust street and into this plaintiff’s premises is not a question presented by this action. That question can be determined in other proceedings and adequate relief for any breach of that obligation can be so obtained. (People ex rel. Kennedy v. Manhattan Gas Light Co., 45 Barb. 136; Gould v. Edison Electric Illuminating Co., 29 Misc. Rep. 241; McEntee v. Kingston Water Co., 165 N. Y. 27.) The single question here is : Has it forfeited to this plaintiff under this statute the penalties claimed ? Upon the conceded facts I am of the opinion that it has not and that hence the judgment appealed from must be reversed.

• All concurred, except Chester, J., dissenting; Houghton, J., not sitting.

Judgment reversed on law and facts and new trial granted, with costs to appellant to abide event.  