APPEAL by the plaintiff, The Beauty Spring Water Company of Lyons Falls, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Lewis on the 10th day of June, 1911, upon the decision of the court rendered after a trial at the Lewis Special Term.
The action was commenced on the 29th day of June, 1910, to restrain the defendant from enforcing certain taxes against the property of the plaintiff.
C. S. Mereness, for the appellant.
Harry W. Cox, for the respondent.
The plaintiff, a domestic water corporation, challenges the validity of a tax imposed against it by the defendant village for village water works purposes, contending that the village system was installed and is now operated in competition with that of its own.
The question has been here before on an appeal from an order which vacated an order to examine the plaintiff tax debtor. The vacating order was reversed by this court (Matter of Beauty Spring Water Company, 134 A.D. 17); and, upon appeal to the Court of Appeals, that order was affirmed upon the ground that questions both of law and fact were presented
which should be tried out in an action in equity ( Matter of Beauty Spring Water Company, 198 N.Y. 413.) Thereupon this action was brought, and after trial the complaint dismissed upon the merits, and from the judgment entered upon that decision this appeal was taken.
The plaintiff has been defeated upon the facts. As the case now stands I think plaintiff is not entitled to equitable relief. The claim that the defendant has no right to tax the plaintiff for installing and maintaining a municipal water works system in competition with its own might be well founded if the plaintiff had furnished an adequate supply of water to meet the requirements of the village; or perhaps it might be entitled to some relief if the supply was sufficient for that part of the village in the town of West Turin, from whose officers it obtained its franchise before the defendant village was organized, and which includes most of the inhabited part of the village. But the finding of the trial judge is that the plaintiff's water works system before the installation of the village system was at times inadequate for domestic purposes and furnished no fire protection at all; that the defendant's water works system, which was installed in the year 1906, is adequate for domestic purposes for the village and for fire protection, and that since the installation of the village system the fire insurance premiums have materially decreased. I think, in view of this finding, which is supported by evidence, the plaintiff is not entitled to equitable relief irrespective of any other question.
The judgment should, therefore, be affirmed, with costs.
All concurred, except MCLENNAN, P. J., who dissented in an opinion.
MCLENNAN, P. J. (dissenting):
The Beauty Spring Water Company was duly incorporated under the laws of the State of New York as a private water corporation. Its charter was duly filed June 23, 1896, and the purpose of the company, as set forth in its charter, is 'to supply water to the inhabitants of the town of West Turin, Lewis county, New York.' The proper consent of the town authorities of West ...