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F. H. VON DAMM v. NEW YORK TELEPHONE COMPANY (07/30/69)

CIVIL COURT OF THE CITY OF NEW YORK, TRIAL TERM, KINGS COUNTY 1969.NY.42711 <http://www.versuslaw.com>; 303 N.Y.S.2d 763; 60 Misc. 2d 677 July 30, 1969 F. H. VON DAMM, INC., PLAINTIFF,v.NEW YORK TELEPHONE COMPANY, DEFENDANT Bernard S. Greenbaum for plaintiff. G. Wallace Bates and Robert Luce Donohue for defendant. Simon J. Liebowitz, J. Author: Liebowitz


Simon J. Liebowitz, J.

Author: Liebowitz

 The plaintiff, in its short-form complaint, alleges that the defendant, in violation of the tariff rates as filed with the Public Service Commission, overcharged the plaintiff, a New York corporation, with its place of business located in Brooklyn, the sum of $623 for listings during the years 1967 and 1968, in the classified directories for Queens and Manhattan. There is no claim of overcharges for the Brooklyn classified directory. The defendant agrees that the sum of $623 would be a correct mathematical calculation if the premise of the plaintiff's contention were correct.

However, the defendant claims first that the rate charged to the plaintiff was subject to a written agreement signed by the plaintiff and the rates for the listings reflected in Public Service Commission No. 800 were only applicable to those listings listed in the Brooklyn classified directory and that any of the listings in the Boroughs of Manhattan or Queens classified directory were in the nature of advertisements which were not subject to tariff regulations of the Public Service Commission.

I find from all the evidence that all the classified directories contain advertisements, which in appearance and fact, are not within the orbit of a definition of a listing as defined in the aforesaid tariff regulations. Such definition reads as follows:

"B. CLASSIFIED DIRECTORY

1. Definition. A classified listing consists of a name, address and telephone number in light face type under a classification in a classified directory published by the Telephone Company."

Advertisements in general contain material more elaborate and descriptive of the nature of the person's business. These advertisements and charges are obviously not subject to the tariff regulations of the Public Service Commission and the charges for the same are completely controlled by the defendant telephone company. If the plaintiff had placed such an advertisement in the Brooklyn classified directory, it is unquestioned that such an advertisement would not be subject to the tariff regulations relating to listings. It has long been established by the decisions that a utility may engage at the same time in both a utility and nonutility business and further that although the first is subject to regulation, the second is not. (Delaware, Lackawanna & Western R. R. Co. v. Morristown, 276 U.S. 182, 194; Great Northern Ry. v. Minnesota, 238 U.S. 340, 346; Terminal Taxicab Co. v. District of Columbia, 241 U.S. 252.)

Both the Public Service Commission and courts of this State have recognized a distinction in cases involving the classified directories. In Matter of New York Tel. Co. No. 15235, on March 10, 1952 (Annual Report of Public Serv. Comm., 1952, pp. 343, 346) the Public Service Commission stated in part: "Certain of the sources of the company's income are not subject to the regulatory powers of this commission. For example, we have no power to fix advertising charges in the classified directory and we exercise no control over interstate toll rates, which are fixed by the Federal Communications Commission."

Again, in Case No. 12190, decided February 6, 1946: "The business of publishing the directory is incidental and certainly was not covered by the above quoted language; and there is no specific statutory requirement for the filing of advertising rates, and hence, there has been no direct violation of the statute by the company in not filing its rates."

In Abco Moving & Stor. Corp. v. New York Tel. Co. (193 Misc. 96; affd. 274 App. Div. 779, mot. for lv. to app. den. 274 App. Div. 823; mot. for lv. to app. dsmd. 298 N. Y. 637) the court, in passing on an application for a preliminary injunction considered the nature of the service performed by the telephone company in publishing a classified directory and stated as follows (p. 96): "Plaintiff seeks an injunction to restrain defendant pendente lite from refusing acceptance of plaintiff's advertisements in the classified telephone directories. No clear right to such relief has been demonstrated. In my opinion, the telephone company in publishing a classified directory does not perform an essential public service except with respect to ordinary listings therein. As to advertisements the position of a telephone company is analogous to that of the publisher of a newspaper or magazine."

It is the contention of the defendant telephone company, that the language of the regulation is so clear and unequivocal that it lends itself to no other interpretation but that the listings in the Queens and the Manhattan classified directories were in the nature of advertisements, were subject to the agreement between the parties and not subject to the regulation. The issue to be determined is whether listings in the Manhattan and Queens directories are in fact advertisements, not subject to the tariff regulation. Subdivision B of the regulation set forth above, standing by itself, would clearly place the listings of the plaintiff in the Manhattan and Queens classified directories within its definition. The listings in form and in fact which were placed in the Manhattan and Queens classified directories, were and are exactly within the definition. This subdivision, standing alone, would leave this court no alternative but to render a decision in favor of the plaintiff without further study. However, the entire regulation must be examined in order to arrive at a decision. Subdivision B2(a) sufficiently categorizes the plaintiff's business as being entitled to a classified listing. During the trial the defendant telephone company described the listings in the Manhattan and Queens classified directory as advertising listings but in their records the light-faced listings were described as "regular related listings." Subdivision B2(b) reads as follows:

"Regulations

"a. A classified listing is provided only in connection with business service and service of clergymen, physicians, surgeons, dentists, osteopaths, chiropodists, podiatrists, optometrists, chiropractors, physiotherapists, Christian Science practitioners, veterinary surgeons, registered nurses and licensed practical nurses.

"b. Such listing must be the same as the listing in the alphabetical directory for the territory in which the telephone service is located except that the business designation is omitted.

"c. Such listing may appear only in the classified directory for the territory in which the telephone service is located.

"d. Such listing may appear only once in the classified directory and under any established classification descriptive of ...


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