#### In the Matter of the Petition of the Public Service Commission for the First District, Respondent, *v.*Northern Union Gas Company, Appellant.

First Department,

July 9, 1915.

Gas and electricity — duty of gas company to install and exchange meters.

Where a gas company at the request of the owner of a building has installed a particular type of gas meter, it has performed its statutory duty under section 62 of the Transportation Corporations Law, and since there is no particular kind of meter prescribed by statute, the company at the request of a tenant is not required by law to change a prepayment meter theretofore installed by it for a black meter, without the payment of the reasonable costs of the change.

Appeal by Northern Union Gas Company from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New *732York on the 31st day of March, 1915, granting a peremptory writ of mandamus.

*John A. Garver*of counsel *[Shearman & Sterling,*attorneys], for the appellant.

*Henry H. Whitman*of counsel *[George S. Coleman*with him on the brief], for the respondent.

Clarke, J.:

This proceeding was instituted under section 74 of the Public Service Commissions Law, which provides: “Whenever either Commission shall he of opinion that a gas corporation * * * is failing or omitting * * * to do anything required of it by law * * * it shall direct counsel to the Commission to commence an action or proceeding in the Supreme Court of the State of New York in the name of the Commission for the purpose of having such violations or threatened violations stopped and prevented either by mandamus or injunction. * * ■ * In case of default in answer or after answer, the court shall immediately inquire into the facts and circumstances * * * without other or formal pleadings, and without respect to any technical requirement. * * * The final judgment in any such action or proceeding shall either dismiss the action or proceeding or direct that a writ of mandamus or an injunction or both issue as prayed for in the petition or in such modified or other form as the court may determine will afford appropriate relief.”

It seems that a tenant in an apartment house which had been furnished with prepayment meters, which operated by dropping a quarter in a slot, whereupon gas to the value of twenty-five cents is furnished, and, when so much is used, is automatically cut off until another quarter is dropped, made a request that the prepayment meter be taken out and a black meter installed. The company declined to comply unless a payment of two dollars was made for the expense of making ' the change. The Commission had a hearing, and determined that the consumer of gas who on entering into the occupation of the premises finds a prepayment meter installed therein *733may, upon making the deposit provided for by statute, require the supply company to provide a black meter, and that the supply company has no legal right to make any charge therefor. Having so determined, it instituted this proceeding for the issuance of a peremptory writ of mandamus commanding the gas company to furnish a black meter upon request without charge therefor to any occupant of premises supplied by it with gas in which said premises it had already installed at the request of the owner or former occupant a prepayment meter. The respondent claims that the law disregarded by the company, and which it is entitled to enforce by mandamus, is section 62 of the Transportation Corporations Law (Consol. Laws, chap. 63; Laws of 1909, chap. 219), which provides: “Upon the application, in writing, of 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 payment by him of all money due from him to the corporation, the corporation shall supply gas or electric light as may be required for lighting such building or premises, notwithstanding there be rent or compensation in arrears for gas or electric light supplied, or for meter, wire, pipe or fittings, furnished to a former occupant thereof; * * * and if for the space of ten days after such application, and the deposit of a reasonable sum as provided in the next section, if required, the corporation shall refuse or neglect to supply gas or electric light as required, such 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.”

The only statute which has been called to our attention relative to a change of meters is contained in section 67, subdivision 5, of the Public Service Commissions Law (Consol. Laws, chap. 48; Laws of 1910, chap. 480). That section provides for an official inspection of meters, and for an official inspection and test upon the request of a consumer, but the consumer is charged with the cost of inspection and test if the meter is found to be correct within certain limits. This has been the law since the passage of section 5 of chapter 311 of the Laws of 1859. (See Trans. Corp. Law [Gen. Laws, chap. *73440; Laws of 1890, chap. 566], § 64; Pub. Serv. Com. Law [Laws of 1907, chap. 429], § 67, subd. 2.) And the appellant claims that, as the Legislature has nowhere provided for any change in meters except where the question of their correctness is raised and has not required the companies to pay for a change even in that case, except when the meters were found to be incorrect, it is evident that the Legislature did not intend to require the companies to substitute meters at their own expense at the mere whim or caprice of a consumer who does not question the accuracy of the meter which has been installed. The learned court below put its decision upon the following ground: “The essential proposition to be decided in the case at bar is whether or not a charge may be made for the installation of a meter of the type prescribed by statute in substitution for a prepayment meter not mentioned in the legislative act. The maximum price for gas supplied is fixed by law. Upon making the requisite deposit to secure the payment for the gas consumed the consumer may require the gas company to replace a prepayment meter by one of the standard type without charge.”

The difficulty with this argument is that there is no standard type of meter prescribed by statute, and when the act of 1859, alluded to above, was passed the wet meter was the only type in use, and that continued to be in general use until after 1875 when the dry or black meter became the prevailing type. The prepayment meters came into use in 1895. The statute under consideration was not the initial statutory provision, but was the re-enactment of section 65 of the former Transportation Corporations Law (Gen. Laws, chap. 40; Laws of 1890, chap. 566), which in turn was a re-enactment of the act of 1859 (Chap. 311, § 6).

It, therefore, seems to us that when, at the request of the owner, a particular type of meter has been put into a building, the company has performed the statutory duty laid upon it under section 62 of the Transportation Corporations Law, and that as there is no statutory meter, it is not required by law, at the request of a tenant, to change. the meter theretofore installed by it without the payment of the reasonable costs of the change. It follows that, as there is no legal duty placed *735upon it which it has refused to perform, the peremptory writ of mandamus will not lie.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the petition denied, with fifty dollars costs.

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

Order reversed, with ten dollars costs and disbursements, and petition denied, with fifty dollars costs.