
    In the Matter of the Application of Uriah Herrmann, Appellant, for a Peremptory Writ of Mandamus Directed to John H. O’Brien, Commissioner of Wafer Supply, Gas and Electricity of the City of New York, Respondent.
    First Department,
    June 3, 1910.
    Mandamus — peremptory writ — answering affidavits taken as true — petitioner must show clear legal right to relief—municipal corporations— water rates, city of New York — mandamus requiring commissioner to furnish water oh a basis of frontage denied.
    The right to a peremptory writ of mandamus must be determined upon the assumption that the allegations of the. answering affidavits are true in so far as they conflict with those of the petition. ’
    Moreover, the peremptory writ will not issue unless it be clear that the relator has a legal right to the relief demanded'.
    
      It seems, that the ordinance of the former municipal assembly of the city of New York, adopted by the board of aldermen pursuant to section 473 of the charter, fixing the scale of minimum annual charges for water supplied to dwelling houses based on a frontage width up to fifty feet and a height up to and including five stories, does hot apply to apartment houses over five stories in height, and, hence, the rate to be charged for water furnished to such apartment house is to be fixed by special contract with the commissioner of water ' supply. .
    The owner of an apartment house in the city of New York over five stories in height is not entitled to a peremptory writ of mandamus compelling the commissioner of water supply to furnish water at frontage rates under said section, where the answering affidavits allege that a meter system was installed without objection and for over five years the. petitioner and his predecessors in title paid for water according to the meter readings without objection.
    
      Appeal by the petitioner, Uriah Herrmann, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 29th day of May, 1909, denying the petitioner’s motion for a peremptory writ of mandamus.
    
      John J. A. Rogers, for the appellant.
    
      Terence Farley, for the respondent.
   McLaughlin, J.:

The relator is the owner of an apartment house seven stories in height and having a frontage of forty-five feet. He appeals from an order denying his application for a peremptory writ of mandamus to compel the commissioner of water supply, gas and electricity of the city of New York to furnish water to the building at frontage rates, to adjust arrears of water rents at the same rate, to cancel and discharge existing liens for water heretofore furnished, and to remove a water meter placed in the building. Both of the parties seem to agree that the rates charged for water furnished to the premises are governed and to be determined by an ordinance of the former municipal assembly, adopted by th.e board of aldermen pursuant to section 473 of the Greater New York charter. This ordinance provides a fixed scale of minimum annual charges for water supplied to dwelling houses, based on a frontage width up to fifty feet ánd height up to and including five stories. The charges vary from four dollars per annum for a one-story house with a frontage of sixteen feet or less to fourteen dollars for a one-story house having a frontage of from thirty-seven and one-half to fifty feet, the rates being increased one dollar for each additional story. The charges are apportioned expressly upon the basis of one family to a house, and one closet and one bath in each house are without extra charge. For each additional family, bath and closet additional charges are fixed. The ordinance further regulates the charges for water supplied for other than domestic use and provides for the installation of water meters in stores, hotels, etc., “ the charge for water measured by meter to be ten cents per 100 cubic feet” and that “all charges not herein mentioned or fixed are reserved for special contract by and with the Commissioner of Water Supply, Gas and Electricity.”

The relator claims that for the water supplied to his apartment house he can be legally charged only at the frontage rates specified in the ordinance. In his petition for the writ he alleges that the lawful charge for water furnished would amount to $106 a year, but that heretofore the commissioner of water supply, gas and electricity unlawfully and “ against the protest of. this relator and his grantor,” installed a water meter upon the premises; that since the 1st of January, 1908, bills have been rendered to him at meter rates and he has accordingly been compelled to pay, against his protest, $1,265.08; that such unlawful charges for water used from March to October, 1908, are unpaid and an apparent lien upon the premises; that' the meter thus illegally installed can be removed only upon a permit from the-commissioner ; and by reason’of such facts he alleges he is entitled to the writ applied for.

From the affidavits presented in opposition to the issuance of the writ, it appears that the apartment house in question was completed about January 1, 1901, and that the relator- did not become the record owner of the same until April, 1903; that in June, 1902," the department of water supply, gas and electricity notified the then owners of the premises to install a meter to measure the water supplied, and upon their failure to do so, the commissioner caused one to be installed the following September; that from the records of the department it appears that the.-expense of installing the meter was paid without protest by the owners in March, 1903, and that no objection or protest of any kind against the installation or maintenance of the meter was thereafter made to the department of water supply until May 22, 1908, when a noticé was received from the relator’s attorney; that since the installation of the meter all charges for water supplied have, without objection, been fixed and determined at meter rates, and that such charges to October 22, 1907, have been paid' without protest, but since that time the charges have remained unpaid. . It thus appears that many of the facts set forth in the petition for the writ were controverted and, therefore, whether the relator was entitled to the writ- had to be determined upon the assumption that the affidavits, in so far as they were in conflict with the allegations of the petition, were true. (People ex rel. Corrigan v. Mayor, etc., 149 N. Y. 215.) Such assumption must not only be indulged in, but it must also appear, before a peremptory writ will issue, that the relator has a clear legal right to the relief asked. (People ex rel. Pumpyansky v. Keating, 168 N. Y. 390.) When the petition'and the opposing affidavits are both considered, it is perfectly clear that it cannot be said from them that the relator is entitled to all or any of the relief which he wants. The ordinance in question cannot be said, certainly upon its face, to apply to an apartment house over five stories in height, and if it does not, then the rates to be- charged for water furnished are to be fixed by “ special contract.” I have grave doubts whether the ordinance applies at all to the modern apartment house. From its wording it would seem to apply only to “dwelling houses,” or such buildings as were so considered at the time the ordinance was passed, because it will be noticed that the frontage rates were apportioned “ on the basis that but one family is to occupy the same.” Then follows the provision that for each additional family one dollar is to be charged. But whether it does or not, what is set out in the opposing affidavits amounts, in effect, to the statement that the rate to be charged was fixed by special agreement. This clearly can be inferred. The meter was installed without objection, and paid for by the then owners of the building, September 24, 1902, and the rates for water furnished from that time to October 22, 1907, —- a period of over five years — were paid by the owners without protest of any kind. Indeed, the relator himself, from the time when he acquired title — April 13, 1903 — down to the 22d of October, 1907, paid for the water furnished according to the meter readings without objection. Under such circumstances it seems to me the relator will have some difficulty in establishing that the meter was not legally installed, and that he is not obligated to pay the charge for water measured by the meter at the rate specified. But if he is not, he certainly cannot test that question in the manner here sought. If, as he claims, the charges are illegal, then he can resist payment of the same when the city seeks to collect them.

I am of the opinion that the court, in the exercise of its discretion, should have dismissed the petition in toto. This, however, it did not do, but granted tiie application to the extent- of requiring the department of water supply, gas and electricity to issue a permit for the removal of the meter, and theri if it saw fit to do so, to cut off the supply of water if the same were removed. . .

The city has not appealed from this part of the order, and for that reason the order appealed from is affirmed, with ten dollars costs and disbursements. 1

Ingbaham, P. J., Olarke, Scott and Dowling, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements. 
      
      See Laws of 1897, chap. 378, § 473; revised into Laws of 1901, chap. 466, § 473, and amd. by Laws of 1902, chap. 509; Laws of 1904, chap. 600, and Laws of 1908, chap. 382.— [Rep.
     