Public Service Corporation v. American Lighting Co. 67 Eq.

the practical application in each particular case of the obligation. resting on the gas companies, was not seriously disputed by counsel of the defendants. But they say that whenever the city, which is a large customer, shall require that gas, to be furnished to it, or to its contractee, shall be paid for by the cubic foot, the duty rests upon the gas company to furnish its own means of measurement.

Let us consider the reasonableness of that proposition as applied to the present case.

By long usage, the complainants have furnished lights for the streets by the lamp and not by the cubic foot. All the apparatus for so furnishing street lights has been adapted to that mode. No provision has ever been made for furnishing or placing meters. Confessedly, it will be very inconvenient, if not absolutely impracticable, so to do. The city cannot, as does the householder, furnish a safe location for the meter—at least it has not done so. I make this last remark because I am well assured that a lamp-post has been and can be manufactured which shall contain within its shell a chamber for a meter.

I say not only has the city furnished no facilities for the placing of meters, but in its proposals for bids for street lighting for the present year, it called for bids by the lamp and not by the cubic foot of gas burned.

The proposals of the successful bidder were by the lamp and not by the cubic foot of gas used, and so is its contract. The demand now made by the lighting company for gas by the cubic foot is a sudden demand, and entirely unwarranted by any authority from the city.

Therefore, I cannot hold that in demanding gas by the cubic foot it is standing in the shoes of the city.

But waiving that. Supposing, now, that the city were demanding gas by the cubic foot, would it be reasonable for it to do so without giving any preliminary notice to the gas company, and without a special arrangement as to the price per cubic foot, and without having provided a place, either in a new lamp-post or in a receptacle beneath the surface of the ground, for the meter?

1 Robbins. Public Service Corporation v. American Lighting Co.

Would it be reasonable for the city, any more than for a private householder, to ask the gas company to furnish a meter for the supply of a single gas burner, though it burns an average of eleven or twelve hours a day?

Would such a consumption be a sufficient consumption to make it reasonable for the gas company to furnish a meter and supply gas at the same rate per cubic foot that it is furnished to householders, where several gas burners are in use?

I think not. I think such a demand unreasonable, certainly so, unless the complainants can be assured that the use of gas by the cubic foot shall continue long enough to warrant the initial expenditure for the installation of the meters.

Here we have a foreign company, which has a contract for nine months only, demanding that the complainants shall furnish it with gas by the cubic foot by a kind of measurement which I conceive and adjudge to be wholly unreliable, and therefore unreasonable, and asserting that if such measurement is not satisfactory to the complainants they must furnish and place their own meters.

This alternative, I consider, their contract with the city does not authorize it to make, and even if authorized by the city, it is inherently unreasonable.

One word more with regard to the defendant's proposed mode of measuring. In the first place, as the defendant will not be burning its own gas, it will have no pecuniary interest to serve by saving the gas-by care in not turning it on too early and in not turning it off too late. It will not find it necessary to employ a great number of lamplighters and light-extinguishers to go from one lamp to another promptly at the stated hours to light and extinguish the lights, but may use a less number by starting earlier in the afternoon and completing the extinguishing later in the morning.

Another consideration is that defendant proposes to make its profit in this transaction out of the capacity of its burner to make the greatest amount of light out of the consumption of the least amount of gas. Its interest, then, will be to pay for as little gas as possible and to be sure to obtain, at least, the full measure of gas for which it pays.

Public Service Corporation v. American Lighting Co. 67 Eq.

Again, the quality of the gas and its heat-producing power will come in question. If the light produced by defendant's burner does not reach the standard for which it contracts and promises, the disposition will be to attribute the failure to the quality of complainants' gas. These matters will be liable to give rise to continual disputes between the parties, and show the importance of the defendant relying upon being able to induce gas companies to adopt its lamp upon its merits, as it seems to have been able to do in certain other cities, and to abstain from attempting to force it on a gas company by the means resorted to in the present case.

Again, counsel for the defendant admitted that their peculiar lamp is never entirely extinguished; that it is turned down to a very small flame in the morning and turned up in the afternoon, so that a match is never used after once lighting the lamp, and that this is accomplished by a pair of strings hanging down the side of the lamp-post. So that the lamplighter or extinguisher, while standing on the ground, has only to pull one or the other of these strings to do his work.

It was not stated that these strings were protected from handling by any chance passer-by, and I can imagine no mode of so protecting them upon an ordinary lamp-post; hence I see nothing to protect the gas company against having its gas wasted by the interference of a mischieviously inclined person.

It was hardly contended by counsel for defendant that it was reasonable to cast upon complainants the obligation to provide against the several chances of waste above mentioned by employing a force of watchers to patrol the streets and see how long the lights were kept burning, and that the gas was not allowed to burn full blast in the daytime.

It is asked, if the foregoing views are correct, how is the defendant Lighting company to fulfill its contract?

To this I answer that the defendant must be charged with knowledge of its disabilities in that respect, and should not have entered into the contract without proper preliminary investigation and provision by convention with the complainants for its fulfillment.

It is further asked, what is the city to do, in the meantime,

1 Robbins. Public Service Corporation v. American Lighting Co.

for light? To this it is answered, and I think well answered, by the complainants, that they are willing to continue supplying the city with gas upon the precise terms of its contract with the defendant Lighting company, and I advised an order, March 14th, 1904, providing for such continued supply. This arrangement seemed to be satisfactory to the counsel for the city.

It is further argued that this is a mere contest between the proprietors of the Welsbach burners and the defendant Lighting company as proprietors of its burners, which it claims to be superior to the Welsbach burners.

This may be so, but it cannot affect the rights of the complainants herein.

It is said that they claim to be the owners and lessees of the four hundred and eighty Welsbach burners which they had installed and in use at the time of the intervention by the defendants. The desire of the defendants is to supersede the Welsbach burners and to install its own in place thereof, and before protection from this court could be procured it had succeeded in removing a large number of the Welsbach burners. I think the defendants were entirely unjustified in so doing.

The burners and the gas pipes to which they were attached, and which connected them to the gas mains, were all the property of the complainants. Their encasement in the lampposts of the city does not, in my opinion, result in their gift to the city nor to their dedication by the gas companies to a public

use.

If the city desire to acquire the title to those gas pipes, they must take the proper methods so to do.

So with the Lighting company. If it wished to install its own lamps in Jersey City, it must either induce, in the ordinary way, the complainants to contract voluntarily with it for such use, or it must, standing in the shoes of the city, make reasonable arrangements with the complainants for the use of gas to supply them.

None of these conditions has been fulfilled, either on the part of the city or the defendant Lighting company.

For these reasons. I will advise an order that the restraint be continued until the final hearing of the cause.

Buttlar v. Buttlar.

67 Eq.

CHRISTIAN BUTTLAR

V.

MINA BUTTLAR.

[Submitted July 2d, 1903. Decided January 11th, 1904.]

1. A husband and wife, having an estate in lands by the entirety and living separately and having entered into an agreement whereby the husband was to receive all the rents and profits in consideration of his paying the wife a certain sum each month, were divorced from the bonds of matrimony by a competent decree.-Held, that the result of the decree of divorce was to change the estate to a tenancy in common, and that the agreement for support was no defence by the divorced wife against a suit by the husband for partition of the premises.

2. The general rule is that no vested interest, as between husband and wife, is disturbed by a decree of divorce unless the instrument under which the vesting arose provides therefor.

3. The fact that property once held by parties jointly was voluntarily conveyed by one to the other for the purpose of hindering and delaying the grantor's creditors, and after those creditors were all satisfied was by proper conveyance restored to its original status, does not injuriously affect the right of the original fraudulent grantor to a partition of the premises.

On final hearing on bill, answer and cross-bill and replication. and proofs in open court.

Mr. Marshall W. Van Winkle, for the complainant.

Mr. John I. Weller, for the defendant.

PITNEY, V. C.

The facts displayed and the questions arising on the pleadings may be briefly stated as follows:

In the year 1894 the complainant and defendant, being husband and wife, were seized in a joint estate of two parcels of real estate in Hudson county, one on Malone street in the town of West Hoboken, and one on First street in the city of Hoboken.

At that time they entered into a contract, in writing, for separate living, dated January 31st, 1894, and printed in extenso in Buttlar v. Buttlar, 57 N. J. Eq. (12 Dick.) 650.