
    Ziegler v. Chapin, Mayor, et al.
    
    
      (Supreme Court, General Term, Second Department.
    
    March 10, 1891.)
    Cities—Power to Purchase Water-Works.
    Laws N. Y. 1886, c. 335, annexing the town of New Lots to the city of Brooklyn, authorized the mayor and other officers of the city to purchase the property and franchises of a water company incorporated in the town, at such price as might be agreed upon by such officers and the company, and, if they should be unable to agree upon a price, power to acquire the property and franchises by right of eminent domain was given the city “within two years hereafter. ” No agreement was made for the purchase of the property, and no proceedings were taken to acquire title to it within two years after the passage of the act. Held, that the power of the officers named to buy expired with the two years to which the right to take by eminent domain was limited.
    Appeal from special term, Kings county.
    Action by William Ziegler against Alfred C. Chapin, mayor of the city of Brooklyn, and the comptroller and auditor of that city, brought by plaintiff, as a tax-payer, to have a contract entered into by defendants on behalf of the city to purchase the property and franchise's of the Long Island Water-Supply Company for the sum of $1,250,000 declared null and void. A preliminary injunction was granted in the action, restraining defendants from purchasing said property, and from carrying out the contract made by them for the purchase thereof. Defendants appeal from an order granting a motion Dy plaintiff to continue the injunction until the trial and determination of the action.
    Argued before Barnard, P. J., and Dykman and Pratt, JJ.
    
      Ahnet F- Jenks, for appellants. William J. Gaynor, for respondent.
   Barnard, P. J.

The legislature, by chapter 335, Laws 1886, annexed New Lots, one of the towns of Kings county, to the city of Brooklyn. There was a water company in the town, of New Lots incorporated under the general law of the state for the purpose of furnishing pure and wholesome water to the authorities and inhabitants of the town. By the annexation act the city assumed the payment of the contract price of the water to be furnished the town under an existing contract. The city was by the act of annexation prohibited from distributing water within the limits of the town until the charter of the water company expired. By the fifth section of the act it was provided as follows: “The mayor, comptroller, and auditor of the city of Brooklyn are hereby authorized, for and in the name of the city of Brooklyn, to purchase the reservoir, well, machinery, pipes, franchises, and all other property of said company when and at such price as may be agreed upon by said officers and by the said company, by its board of directors, who are hereby authorized to sell and convey the same to said city; and in case said parties shall be unable to agree upon a price for the purchase and sale of the said property of the said company, then in that ease the power to acquire said property and franchises by the right of eminent domain is hereby expressly delegated to said city of Brooklyn, and the said officers, in the name of and for said city, within two years hereafter may proceed to acquire and may acquire all such property by proceedings such as are required for the acquiring of additional land for railway purposes, by corporations formed under the provisions of chapter one-hundred and forty of the Laws of eighteen hundred and fifty. And all such property, when thus purchased or acquired, shall thereupon become and be a part,of the water supply property of said city, but it shall be held subject to two mortgages now on said property, each made to secure the sum of two hundred and fifty thousand dollars and interest.” No agreement was made for the purchase of the property within the two years after the passage of the act, and no proceedings were taken within that time to acquire the title to the property rights of the water company within two years after the passage of the annexation act. The mayor, comptroller, and auditor have now agreed with the board of directors of the water company upon a price for the water company’s property. We think that the power of these officers to buy expired with the limitation of two years, during which period the city had the right to take title by eminent domain. This reading would be in accord with the general course of legislation. The general railroad act provides for an attempt to agree with the owner, and, in ease of failure to agree, that a condemnation can be had, and all condemnations since, which have been authorized by the legislature, have so far as possible been based on this general railroad act. This very section is based upon the general railroad act. If there had been no limitation of the power to condemn, the power to buy would have been continuous, and accompanied by a continuous power to condemn. To hold that the power to agree upon a price continued after the power to condemn had expired would subject the city of Brooklyn to perhaps an exhorbitant price for the property, as there would be no method by which a disinterested tribunal could be appointed with power to establish a price as between the parties to the purchase. The power to agree upon a price, whenever given, is expressly followed by the right to condemn, and .that is limited by time. Both must fall together. We are strengthened in this view by chapter 583, Laws 1888. By this act all local and special laws were combined, and a complete system of condemnation of lands and rights for its water supply was given to the city. The commissioners of city works could with the consent of the common council buy lands for the purpose, and in case of a failure to agree the right to condemn was given. It is true that the consolidation act was saved by express words from repeal, but that act must necessarily stand as long as the town rights of New Lots were protected by it. There was no intent by saving the consolidation act to retain certain provisions in it which had become inoperative by lapse of time, and that the legislature deemed section 5 of the consolidation act as without further force is seen from the substitution of a power to take by condemnation the lands as part of the general city system. The order should therefore be affirmed, with costs and disbursements. All concur.  