upon the par value of the capital stock which is employed in business in the state. The determination of the Comptroller was right, and should be confirmed, with $50 costs and disbursements. All concur. DOBBS v. NORTHERN UNION GAS CO. (Supreme Court, Appellate Term. January 9, 1912.) 1. GAS (§ 13*)-RIGHT TO SHUT OFF SUPPLY-ENTRY OF PREMISES-TRESPASS. Transportation Law (Consol. Laws 1909, c. 63) § 64, provides that an agent of a gas company may, upon exhibiting a written authority, signed by the president and secretary of the corporation, enter premises to inspect and examine the meters. Section 65 provides that, upon the neglect or refusal to pay rent due for gas, the corporation supplying the gas may cut it off from the premises of such person, and may enter the premises at appropriate times to separate and carry away the meter used in supplying such gas. Held, that section 65 gives an absolute right to enter premises to disconnect a meter, which is not dependent upon the exhibition of written authority under section 64, and peaceable entry by an agent of the corporation for that purpose, though without consent, was not a trespass. [Ed. Note. For other cases, see Gas, Cent. Dig. § 9; Dec. Dig. § 13.*] 2. GAS (§ 13*)-RIGHT TO SHUT OFF SUPPLY-TRESPASS-DAMAGES. Where a meter rental was paid between the time when an employé of the gas company left the company's office to disconnect the meter and the time of his entry into the premises, the company was guilty of a mere technical trespass, and should be held responsible in nominal damages only. [Ed. Note. For other cases, see Gas, Cent. Dig. § 9; Dec. Dig. § 13.*] 3. GAS (§ 13*)-RIGHT TO SHUT OFF SUPPLY-TRESPASS-DAMAGES-EXEMPLARY-INSULT EVIDENCE. A recovery cannot be had for insulting words, accompanying a trespass made by an agent of a gas company, where the words were spoken at a time other than that at which the alleged trespass was committed. [Ed. Note. For other cases, see Gas, Cent. Dig. § 9; Dec. Dig. § 13.*] Appeal from Municipal Court, Borough of the Bronx, First District. Action by Willoughby B. Dobbs against the Northern Union Gas Company. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered. Argued before GIEGERICH, LEHMAN, and PENDLETON, JJ. LEHMAN, J. The plaintiff sues for damages for trespass. At the trial it was shown that the alleged trespass was an entry upon the premises for the purpose of disconnecting the gas meter for nonpayment of rent. It appears that the defendant's agent entered the premises without force or opposition, but without the plaintiff's permis sion. *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes [1] At the trial the plaintiff was permitted, over the defendant's objection, to show that the agent exhibited no written authority. The plaintiff's counsel then stated: "We claim a trespass, and under the transportation law and the decisions construing it the company or a representative may enter the premises upon receiving written authority from the officials of the company authorizing him to enter. If admission is refused, the party refusing admission is liable to a penalty. If the employé attempts to enter without such written authority from the company, there is a trespass committed." I think that the theory of the plaintiff's attorney is erroneous, and the admission of evidence to prove that the agent showed no written authority is reversible error. Section 64 of the transportation law (Consol. Laws 1909, c. 63) provides that an agent of a gas company "may, at all reasonable times, upon exhibiting a written authority, signed by the president and secretary of the corporation, enter any dwelling, store, building, room or place lighted with gas or electric light, for the purpose of inspecting and examining the meters," etc., and further provides for a penalty of $25 for preventing or hindering the agent from so entering. Under this section there is no doubt but that the right to enter premises for the purpose of inspecting and examining the meter is made dependent upon the exhibition of written authority; but this section has no application to an entry to disconnect the meter for neglect or refusal to pay rent. This right. is expressly given by section 65 of the act, which provides that: "If any person supplied with gas * by any such corporation shall neglect or refuse to pay the rent or remuneration due for the same, such corporation may prevent the gas 串 * * from entering the premises of such person, and their officers, agents or workmen may enter into or upon any such premises between the hours of eight o'clock in the forenoon and six o'clock in the afternoon and separate and carry away any meter, and may disconnect any meter from the mains, pipes or wires of such corporation." * * * * * Under this section the right to enter is absolute, and not dependent upon the exhibition of any written authority. Of course, the gas company cannot enter through breaking down doors or other breach of the peace (Reed v. N. Y. & Richmond Gas Co., 93 App. Div. 454, 87 N. Y. Supp. 810); but a refusal to permit its agent to enter is wrongful, and an entry peaceably secured thereafter is not an actionable wrong. The sole issue in this case, therefore, was whether or not, at the time of the entry, the plaintiff had neglected or refused to pay the rent due, and the admission of testimony tending to raise immaterial issues was error. [2] Moreover, on this issue the proof is uncontradicted that the payment for rent due, if made prior to the entry, was made at the office of the corporation after the agent had left the office and approximately at the time of the entry. If the defendant under those circumstances was guilty of any trespass, it was certainly of the most technical kind, and should be held to respond only in nominal damages. Fortescue v. Kings County Lighting Co., 128 App. Div. 826, 112 N. Y. Supp. 1010. [3] The plaintiff claims that the entry was accompanied with insult, for which he is entitled to damages. With this contention I also disagree. The only words that could possibly be construed as insulting were used by the agent towards the plaintiff's wife, not at the time he was committing the alleged trespass, but previous thereto, while asking admission to the premises. Judgment should be reversed, and a new trial ordered, with costs. to appellant to abide the event. All concur. HARRIS v. NATIONAL RESERVE BANK OF CITY OF NEW YORK. (Supreme Court, Appellate Term. January 9, 1912.) 1. BANKS AND BANKING (§ 126*)--COLLECTIONS-RETURN OF NOTE AFTER FAILURE TO COLLECT. A bank, which credits to a depositor's account a note received from the depositor for collection and which, after a failure to collect, negligently fails to return the note to the depositor at his own address and deprives him of his right to the note, has no right to charge the amount against the depositor's account. [Ed. Note. For other cases, see Banks and Banking, Cent. Dig. §§ 305, 309; Dec. Dig. § 126.*] 2. BANKS AND BANKING (§ 126*)-COLLECTIONS-CHARGE AGAINST DEPOSI TORS. Where a bank, after failure to collect a note left with it for collection by a depositor, returned it to the depositor, who received it and himself collected thereon, the bank is entitled to charge the amount to the de positor. [Ed. Note. For other cases, see Banks and Banking, Cent. Dig. §§ 305, 309; Dec. Dig. § 126.*] 3. BANKS AND BANKING (§ 154*)-COLLECTIONS-ACTIONS BY DEPOSITORSUFFICIENCY OF EVIDENCE. Evidence, in a depositor's action against a bank for its refusal to pay the amount of a note deducted from his account after failure to make collection thereon, held insufficient to sustain a judgment for plaintiff. [Ed. Note. For other cases, see Banks and Banking, Cent. Dig. § 5 26; Dec. Dig. § 154.*] Appeal from Municipal Court, Borough of Manhattan, First Dis trict. Action by David Harris against the National Reserve Bank of the City of New York. From a judgment of the Municipal Court for plaintiff, defendant appeals. Reversed, and new trial ordered. Argued before GIEGERICH, LEHMAN, and PENDLETON, JJ. Sullivan & Cromwell (J. Hampden Dougherty, Jr., of counsel), for appellant. George A. Ferris, for respondent. LEHMAN, J. The plaintiff had a bank account in the defendant bank. In September, 1909, the bank discounted a note for him, and the amount of the note less the discount was entered in the plaintiff's bank book. The note was payable to the order of Harris & Jabaly, and indorsed by them and by the plaintiff. Previous to May 1, 1909, For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes the plaintiff had admittedly been a member of that firm. On that day the firm sent out notices as follows: "We beg hereby to announce that the copartnership heretofore existing between Harris & Jabaly at 24 Rector street, New York City, has been this day dissolved by mutual consent. All former obligations of and debts due the firm of Harris & Jabaly will be met and collected by both parties. "Harris & Jabaly, 24 Rector St." After May 1st the plaintiff moved to 27 Rector street, and claims that he gave the defendant notice of his change of address. When the note became due the defendant attempted to collect it, but payment was refused. The note was sent to the plaintiff, with notice of protest, addressed to 24 Rector street, instead of 27 Rector street. The amount of the note, with protest fees, was deducted by the bank from the deposit account of the plaintiff, and it refused to pay this amount to the plaintiff upon demand. [1, 2] The case involves no abstruse questions of law as to the rights of the bank to deduct from the bank account of a depositor the amount of a note previously discounted by the bank and credited to the depositor's account. Whatever its rights may ordinarily be if it returns the note to the depositor, it is clear that it has no rights if it negligently fails to return the note to the depositor at his known address and deprives the depositor of his right to the note, while it may certainly charge the amount to the depositor if he receives and accepts the note and collects it. In this case we may concede that the note was negligently sent to 24 Rector street after the defendant had received notice that the plaintiff's address was 27 Rector street. The latter address, however, was the address of the firm of Harris & Jabaly, of which the plaintiff had been a member. He permitted his name to remain on the window for a year after the alleged dissolution, and according to the notice of dissolution both members of that firm and that address continued to represent the firm for the purpose of paying or collecting the firm obligations. The note came into the hands of Harris & Jabaly, was collected by them from the maker, and was deposited by the firm of Harris & Jabaly in the firm name in another bank. [3] Certainly these circumstances tend to show that the firm of which plaintiff was a member has received the benefit of the note, and the plaintiff's denial of its receipt is too improbable to receive credence, nor is greater credibility given to it by his testimony that the firm of Harris & Jabaly, which collected the note and deposited its proceeds to their own account in a different bank, was composed, not of the original partners, but of their wives. It is true that there was no direct evidence to contradict this testimony; but "if everything or anything had to be believed in court simply because there is no witness to contradict it, the administration of justice would be a pitiable affair." Punsky v. City of New York, 129 App. Div. 558, 114 N. Y. Supp. 66. Judgment should be reversed, and a new trial ordered, with costs. to appellant to abide the event. All concur. HALLOCK v. DILLON et al. (Supreme Court, Trial Term, Allegany County. January, 1912.) 1. JUSTICES OF THE PEACE (§ 75*)-ISSUES AFFECTING TITLE TO LAND-UNDERTAKING BY DEFENDANT. Under Code Civ. Proc. §§ 2951, 2952, requiring a defendant in justice's court, who shows that title to real property will come in question, to deliver to the justice an undertaking conditioned on his giving, within 20 days after deposit by plaintiff with the justice of a summons and complaint in a new action in the proper court, a written admission of service, a defendant has all of the 20 days in which to make a written admission of service, which is tantamount to personal service as of the day when the admission is given, and where the admission is made within 20 days after deposit he has full 20 days from the date of the admission in which to plead in defense. [Ed. Note. For other cases, see Justices of the Peace, Cent. Dig. § 243-245; Dec. Dig. § 75.*] 2. PLEADING (§ 193*)-COMPLAINT-REQUISITES. A complaint, which sets forth facts constituting a cause of action and facts constituting a valid defense, must be considered as a whole and is bad on demurrer. [Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 428-443; Dec. Dig. 193.*] Action by Charles M. Hallock against William Dillon and others. Demurrer to complaint sustained. George H. Blackman, for plaintiff. WHEELER, J. On the 1st day of June, 1911, the plaintiff in this action commenced an action in justice's court, before Frank M. Leonard, a justice of the peace of the town of Wellsville, N. Y., against the above-named defendants William Dillon and Moses D. Kibbie. The summons was made returnable on the 12th day of June, 1911, at 10 o'clock in the forenoon, and was returned to the justice personally served on both defendants. On the 12th day of June, 1911, the return day of the summons, the plaintiff appeared in person and by his attorney, George H. Blackman, and filed with the justice a written complaint alleging trespass on land. On the 17th day of June, 1911, the defendants appeared in person and by their attorney, Francis B. O'Connor, and filed separate answers, each pleading title to land by user; and each defendant's answer was countersigned by the justice of the peace and delivered to plaintiff's attorney, and the defendants delivered to the justice an undertaking which was approved by him, and the action was discontinued by the justice of the peace, and the plaintiff was required to pay his own costs. The condition of the undertaking filed with the justice of the peace by the defendants is: "That if the plaintiff above named, within 20 days after the delivery of the answer in the above-entitled action and this undertaking, to the justice before whom this action is pending, deposits with said justice a summons and complaint in a new action for the same cause to be brought in the proper For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes |