Summary
In Telephone Secretarial Serv. v. Sherman (28 A.D.2d 1010) it was held that an agreement to provide telephone answering service for a year and to be automatically renewed from year to year unless canceled was within the scope of section 5-903 and did not automatically renew in the absence of the required statutory notice.
Summary of this case from Harris v. Adams Co.Opinion
October 30, 1967
Order of the Appellate Term, Second Judicial Department, dated November 10, 1966, which affirmed a judgment of the District Court of the County of Nassau, Third District, entered April 4, 1966, granting summary judgment to respondent, affirmed, with $10 costs and disbursements. On January 4, 1963, plaintiff, a telephone answering service, and the defendant physician entered into a written agreement whereunder defendant promised to pay plaintiff $35 per month for 250 telephone messages, plus 10 cents for each additional message, and, for outgoing calls, 10 cents per message unit or the prevailing toll rate. Plaintiff promised to render service 24 hours per day on "2 lines". With respect to its term, the agreement provided: "This agreement shall continue for a year, and shall be automatically renewed from year to year thereafter unless cancelled by either party by written notice, thirty (30) days before the end of any years [sic] service." On March 11, 1965, defendant notified plaintiff that he would not use plaintiff's service after March 30, 1965. Though defendant had not terminated the agreement 30 days before January 4, 1965, in accordance with the renewal provision of the written agreement, plaintiff had not directed defendant's attention to that provision in accordance with sections 5-901 or 5-903 of the General Obligations Law, statutes dealing respectively with automatic renewal provisions in leases of personal property (§ 5-901) and in contracts for service, maintenance or repair to or for real or personal property (§ 5-903). In September, 1965, plaintiff began this action against defendant for breach of the contract, seeking recovery of $175, the sum claimed by plaintiff to be due for the five months following March, 1965. Defendant's answer in part was that the agreement was unenforcible. Summary judgment was granted him by the District Court for the two-fold reason that plaintiff had not observed the notice provisions of sections 5-901 and 5-903. Thereafter, the Appellate Term affirmed the judgment, but on the ground that only section 5-903 sustained the judgment, a disposition with which we concur. Into the undertakings found in the January, 1963 agreement we cannot read the leasing of any personal property by plaintiff to defendant ( Feder v. Caliguira, 8 N.Y.2d 400, 404); nor can we detect a promise, express or implied, burdening plaintiff with the maintenance or repair of real or personal property. In our opinion, however, plaintiff's answering of defendant's telephone was a "service * * * to or for * * * personal property" and defendant was "the person receiving the service" (§ 5-903). The words "service, maintenance or repair" in section 5-903 are to be generously read in order that their scope will engage the variegated evil the statute was intended to meet (cf. Peerless Towel Supply Co. v. Triton Press, 3 A.D.2d 249). Plaintiff's service is rendered "to or for" (§ 5-903) parts of what is essentially a communications system, one which ordinarily becomes effective when a dialed number "answers". Therefore, it is inconsistent, in our view, to argue that recording and relaying messages received at the end of a communications system was not a service "to or for" that part of the system found in the defendant physician's office. Christ, Acting P.J., Brennan, Hopkins, Benjamin and Munder, JJ., concur.