(78 Hun, 328.)

#### UNITED STATES ILLUMINATING CO. v. FISK et al.

(Supreme Court, General Term, First Department.

May 18, 1894.)

Contracts—Agreement to Use Electric Lights—Breach.

An agreement by defendant to use plaintiff’s electric lights in certain premises, “to the exclusion of other electrical illumination,” is not an absolute requirement that defendant shall use the electric lights, but only that he shall not use any electric light other than plaintiff’s, and defendant is not liable for breach of contract where he removes from the premises specified, and refuses to use plaintiff’s electric light therein.

Appeal from circuit court, New York county.

Action by the United States Illuminating Company against Henry G\ Fisk, Thomas R. Clark, and Thomas J. Flagg for breach of contract. From a judgment dismissing the complaint, plaintiff appeals.

Affirmed.

Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, JJ.

J. W. Houston, for appellant.

H. B. Kinghorn, for respondents.

VAN BRUNT, P. J.

This action was brought to recover damages for a breach of a contract entered into between the plaintiff and the defendants, by which the plaintiff agreed to furnish, and the defendants agreed to use, electric light upon the premises occupied by the defendants at the time of the making of the contract;—No. 686 Broadway, in the city of New York. On the 23d of July, 1889, said contract was entered into, whereby the plaintiff agreed to wire the premises No. 686 Broadway, and to supply an electric current for a number of incandescent lamps for a term of three years from the time at which the connection therefor was made, and the defendants agreed to pay, for the light used each month, a certain rate fixed by the contract. Subsequently, in September, 1889, the plaintiff and defendants entered' into another contract for additional lamps, upon the same terms and conditions as the original contract; and on the 31st of March and the 26th of June, 1890, certain other contracts were entered into, of like purport. On the 1st of February, 1891, the defendants removed from the premises 686 Broadway, and refused to use, electric lights on said premises. It was claimed by the plaintiff that thereby the defendants broke their said contract, to the damage of the plaintiff; and the question pre*155sented is whether the discontinuance, upon the part of the defendants, of the use of electric light upon these premises, was a breach of the contract. We think it was not. The forms upon which these contracts were made were printed, and they originally contained a provision that the lamps furnished by the plaintiff were to be used to the exclusion of other artificial illumination; and this was changed in the contract in question to the words “to the exclusion of other electrical illumination.” There is no claim that, upon the premises in question, any electric illumination except that of the plaintiff has been used by the defendants during the term in •question. The defendants, under the contract, had the right to use other artificial illumination,—to what extent there is no provision contained in the contract,—and were to pay only for electric illumination to the extent to which such illumination was used. This being the nature of the contract, and the necessary construction which must be placed upon the provision for use which was agreed to by the defendants, it is difficult to see why they were not permitted to discontinue the use of electrical illumination if they so desired. As has already been observed, the prohibition was against other electrical illumination, and necessarily implied the right to use other artificial illumination.

It is urged that the defendants’ contention that, by reason of phrase, “to the exclusion of other electrical illumination,” they are relieved from any promise to use the lamps at all, is contrary to the rule of construction which requires that a contract should not be made nugatory by a liberal construction of an exception. But the difficulty with this claim is that, under the construction claimed upon the part of the plaintiff, the court is called upon to make a contract which the defendants have not agreed to. All that the defendants have agreed to do is that they will not use other electrical illuminations on these premises, and, as they have the right to use such other artificial illuminations as they please, it is difficult to see why any obligation is to be found in the contract which requires them to use any electrical illumination at all, if they desire to use other artificial light.

It is further urged that, as the word “electrical” was inserted for the benefit, and presumably at the request, of the defendants, tlieir contention is contrary to the rule of construction which requires that, in case of doubt, language should be construed most strongly against the party in whose favor it was used. It being conceded that the word “electrical” was inserted for the benefit, and at the request, of the defendants, it is perfectly apparent that they supposed that they were getting some privilege by reason of its insertion, and of the change from the word “artificial” to the word “electrical.” But, under the theory advanced upon the part of the plaintiff, notwithstanding this alteration, the contract is to read the same as though no such change had been made. It is evident that, in the framing of these contracts, the purpose of the plaintiff was to make them absolutely binding upon the party with whom the plaintiff contracted, but that the plaintiff should be under no obligations whatever, or, if any, they were to be of the most uncertain and *156ephemeral character. The defendants, when requested to make a contract of this description, evidently refused, and demanded that they should have the right to use other artificial light if they pleased; and all that they would consent to contract for was that they would not use other electrical illumination, which there is no-evidence that they have done. We are of opinion, therefore, that there was no breach of the contract upon the part of the defendants, and consequently that no cause of action was made out by the-plaintiff, and the complaint was properly dismissed. The judgment, should be affirmed, with costs. All concur.