#### David Greenberger, Respondent, *v.*Queens County Water Company, Appellant.

First Department,

December 5, 1913.

Public service corporations — water supply company—breach of contract—removal of water meter—when action for trespass does not lie.

Where a contract made between the plaintiff, the lessee of real property, and the defendant, a corporation furnishing water to the inhabitants of a municipality, provided that the plaintiff in order to be supplied with water should deposit a certain sum to be returned on satisfactory proof that his account had been settled in full, etc., and provided further that the plaintiff should pay a certain minimum sum per annum and that the defendant had a right to discontinue the services, upon notice, if a bill for water was not paid within five days after it was due and had a right of access at reasonable hours to all parts of the plaintiff’s premises to which water was supplied, the plaintiff, having refused to pay sums legally due under the contract, cannot maintain an action for trespass against the defendant because it entered his premises, removed the water meter and discontinued the supply.

*402Appeal by the defendant, Queens County Water Company, from an order and determination of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 8th day of May, 1913, affirming a judgment of the Municipal Court of the City of New York in plaintiff’s favor, and an order denying defendant’s motion for a new trial.

*Franklin B. Lord,*for the appellant.

*Lewis F. Glaser,*for the respondent.

Dowling, J.:

Appeal from a determination of the Appellate Term affirming a judgment of the Municipal Court, borough of The Bronx, second district, entered upon a verdict of a jury in favor of plaintiff in the sum of $500 for damages sustained by reason of a trespass.

On September 20, 1911, plaintiff was in possession as lessee of the premises No. 20 Dodge avenue, Bockaway Beach, borough of Queens, New York city, and found that the water supply therein had been discontinued. He was advised that the defendant was the party supplying water to the premises and went to its offices and there made application for the furnishing of water. He states that he said: “I want to get water. I moved in to-day.” Thereupon defendant’s representative said: “All right; it will cost you $15.” Thereupon plaintiff was handed a printed form of agreement which he signed and which was signed on behalf of the company, constituting the contract between them for the supply of water to the premises. Plaintiff then paid fifteen dollars, and obtained a receipt therefor, whereupon the representative said, “The next day you will have water; ” the following day the water was turned on (apparently through a three-fourths inch meter), and it was continuously supplied to plaintiff until March 13, 1912. On that day the defendant’s representatives entered the premises of the plaintiff and renewed a demand which had been made on the preceding day for a payment of fifteen dollars, upon the failure to pay which the meter was taken out and the supply of water discontinued. It is for this entiy that the plaintiff sues.

*403Thereafter, about June 1, 1912, plaintiff paid the sum of fifteen dollars and applied for a one-half inch meter instead of a three-fourths inch meter, receiving back five dollars of the original deposit paid by him so that the total amount paid amounted to twenty-five dollars. The controversy between the parties arose from the plaintiff’s failure to comply with the terms of his contract with the defendant. When he made his application for the supply of water to the premises occupied by him, he signed the written contract before referred to, which was also executed by the defendant, by virtue of which he was to make the following payments:

*First.*A deposit of not less than ten dollars, which in his case was fixed at fifteen dollars. This he paid. With respect to this deposit, the contract provides as follows: “Such deposit will be returned to the depositor with the legal interest from the date of deposit, on satisfactory proof that his account has been settled in full, and either that the meter has been removed and the water shut off, or that application by a new owner or lessee has been duly made for continued supply, and accepted by the company.” As plaintiff never brought himself within any of these conditions the deposit was properly in the custody of the company until June 1, 1912, when he made an application for a smaller meter, turned back the old receipt, and received a new receipt for ten dollars and five dollars in money, the ten dollars being the deposit upon a one-half inch meter.

*Second.*The contract also contained a clause plainly printed, by which it was provided “ after meters are attached the company’s charges will be made on the basis of the following minimum rates: * * * Through a *%*inch meter, $15 per annum.” It was as to this provision that the controversy arose and plaintiff was entirely in the wrong in his refusal to comply therewith. At the time when he made application he was not asked for the fifteen-dollar minimum rate, which was payable after the meter was installed, but not having paid for water of any kind, a bill was sent him, and properly so, in the sum of fifteen dollars. This bill was upon a printed form used by the company in sending out its accounts, bore date of December 19, 1911, and informed plaintiff that he was in arrears for water furnished from June 1, 1911, to date — fifteen dollars. It also *404notified him that if settlement was not made on or before December 23, 1911, the service would be disconnected. Under the contract between plaintiff and defendant, the minimum rate was payable in advance on June first of each year. Of course, the inclusion of that printed date in the bill was an error, since plaintiff had not been in possession of the premises until September; nevertheless, under his contract the minimum rate of fifteen dollars was payable the day after the meter was attached, which was about September 22, 1911. Plaintiff did not pay this bill but he went to the defendant’s office and asked them how much water he had actually used, whereupon they advised him that water had been supplied to the amount of five dollars and eighty cents since the time the meter had been connected. Under the contract between the parties, measured water rates, that is, charges for water furnished through the meter, ¡were payable monthly. Plaintiff conceived the idea that he was being charged for water that had been used by the previous tenant of the premises occupied by him. That this was not the fact he knew as far back as December, 1911, upon which occasion he called with his bill for fifteen dollars at the defendant’s office, and was there told by Webster, the clerk in charge, that the minimum rate was due from the time he went into his premises, on or about September twentieth, and the clerk changed the date from June first to September twentieth and handed the bill back to plaintiff. Greenberger then inquired how much he owed for water, whereupon Webster looked up the books and told him he owed five dollars and eighty cents for water actually furnished, and also the fiftéendollar payment required from all applicants. Plaintiff offered to pay the five dollars and eighty cents and refused to pay the fifteen dollars, and it was owing to his continued and persistent refusal to pay this money that the service was finally discontinued and the water meter taken out. Under the contract between the parties the superintendent, or proper agent of the company, was given the right of access at reasonable hours to all parts of such premises to which water was supplied by the company. The company also had the right to discontinue its service upon twenty-four hours’ notice, if any bill for water was not paid within five days after same was due. *405Furthermore, the consumer was not to be entitled to be supplied with water by the company until he had paid all sums due from him.

From these considerations it appears that the plaintiff, by his unreasonable and unlawful refusal to comply with the terms of the contract between him and defendant, in failing to pay the minimum rate of fifteen dollars required to be paid by him after the meter had been attached, had defaulted on the contract, and the defendant was justified in entering upon his premises and removing the meter and discontinuing any further supply of water. The fact that the plaintiff mistook the minimum rate of fifteen dollars for the deposit of fifteen dollars furnishes no reason why he was entitled to a supply of water upon the payment of fifteen dollars instead of thirty dollars, as the contract required. The relation between the parties was purely contractual, and the plaintiff was the only one guilty of a breach thereof. It follows that no trespass was committed by the representative of the defendant in entering upon the plaintiff’s premises, and that as plaintiff has failed to establish any cause of action therein the motion to dismiss at the close of the plaintiff’s case should have been granted. This view of the case renders unnecessary a discussion of the errors committed in the receipt of evidence and in the charge to the jury, as well as in the refusals to charge, many of which were of sufficient gravity to have alone justified a reversal of the judgment.

The determination of the Appellate Term and the judgment of the Municipal Court will, therefore, be reversed, with costs to the appellant, and the complaint of the plaintiff herein dismissed, with costs.

Ingraham, P. J., Clarke, Scott and Hotchkiss, JJ., concurred.

Determination reversed, with costs, and complaint dismissed, with costs. Order to be settled on notice.