APPEAL by the plaintiff, The Staten Island Water Supply Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Richmond on the 28th day of October, 1910, upon the dismissal of the complaint by direction of the court on a trial at the Richmond Trial Term.
T. Ludlow Chrystie, for the appellant.
Clarence L. Barber [Theodore Connoly and Archibald R. Watson with him on the brief], for the respondent.
The plaintiff sued the defendant to recover the sum of $73,380.88, with interest. In its complaint it tried to set forth three separate causes of action. The defendant answered with denials generally and set up several affirmative defenses. When the action came on for trial the defendant moved to dismiss the complaint on the ground that it failed to state a cause of action. The motion was granted and judgment was entered accordingly, and from this judgment the plaintiff appeals. It appears in the complaint that the plaintiff is a water works company, organized under the laws of this State for the purpose of supplying water for public and private use in a locality which now comprises the first and third wards of the borough of Richmond of the city of New York, and which, prior to January 1, 1898, embraced the villages of New Brighton and Port Richmond and the town of Northfield in the county of Richmond. The plaintiff had carried on its
business of public and private water supply in the territory above described for twenty-five years prior to 1909.
For the purpose of stating and analyzing more clearly the question of law which gives rise to the controversy between the parties, the second separate cause of action set forth in the complaint will be taken up for consideration first. Briefly stated, it is alleged in this cause of action that the defendant maintained in the borough of Richmond a public building known as the Borough Hall; that the only source of water supply for that building was that obtainable from the water mains of the plaintiff, laid pursuant to law in that locality; that the defendant tapped the plaintiff's water mains and connected the plumbing of the Borough Hall building therewith and used the water therefrom for lavatory and sanitary uses in the Borough Hall from July 1, 1906, to February 16, 1909; that the reasonable value of the water so used was at the rate of fifteen cents for 100 cubic feet; that the plaintiff has presented bills for the water so used, amounting to $8,517.20, and filed a claim therefor, as provided by statute, and the defendant has refused to pay the same or any part thereof. The defendant justifies its refusal to pay on the ground that there was not between the plaintiff and the defendant during the period of the defendant's use of the plaintiff's water any contract entered into according to the requirements of section 471 of the Greater New York charter, as revised by chapter 466 of the Laws of 1901, and as in force during the period in question. That section provides as follows: 'It shall not be lawful for the commissioner of water supply, gas and electricity to enter into any contract whatever with any person or corporation engaged in the business of supplying or selling water for private or public use and consumption, unless, preliminary to the execution of the contract, the assent of the board of estimate and apportionment, together with the separate written consent and approval of both the mayor and the comptroller of the city of New York of the proposed contract in all its details, shall be given by resolution to the execution of such contract as submitted, and it shall not be lawful for the said city of New York or for any department thereof, to make any contract touching or concerning the public water supply, and especially the increase thereof,
with any person or corporation whatsoever, save in accordance with the provisions and requirements of this act, which said provisions and requirements are hereby declared to establish the exclusive rule for the making of such contracts. All proceedings relating to the making or approval of any such contract may be reviewed by the Appellate Division of the Supreme Court in the first or second department on the application of any resident taxpayer.'
The section just set forth is but a re-enactment, with the omission of a few words, of chapter 283 of the Laws of 1900, which amended section 471 of the Greater New York charter as originally enacted in chapter 378 of the Laws of 1897. As this section stood in the original charter of 1897 the power of the commissioner of water supply of the city of New York 'to enter into any contract whatever with any person or corporation engaged in the business of supplying or selling water for private or public use' was made subject to the assent 'of the board of public improvements.' The amendment of 1900 added to the boards or officers whose assent was necessary the board of estimate and apportionment and the mayor and the comptroller of the city, acting separately. The 'board of public improvements' was abolished by the revised charter of 1901, and the reference to said body was then omitted. The language of the section in its main aspects, except as to the boards or officers whose assent was required, has been practically the same from 1897, except that by the amendment of 1900 there was added a final clause, as follows: 'All proceedings relating to the making or approval of any such contract may be reviewed by the Appellate Division of the Supreme Court in the first or second department, on the application of any resident taxpayer.'
The inclusion of this latter clause, quite extraordinary in its nature, is very suggestive of the history of the amendment of 1900 and the legislative intent sought to be carried out. A proposition had been brought before the board of public improvements of the city of New York to enter into a contract for a long term of years with a ...