
    The People ex rel. Martha H. Lind, Relator, v. The City of New York, Herman A. Metz, Comptroller, and John H. O’Brien, Commissioner, Etc., Respondents.
    (Supreme Court, New York Special Term,
    June, 1909.)
    Mandamus — Procedure and relief: Parties — Vendor liable to pay tax may institute: Application — Service of affidavits.
    Municipal corporations — Taxation and water rents — Water rents — Computation from subsequent meter rates.
    A charge for water rents in the city of New York, based, upon an average calculated from the measurements shown by the meter for a subsequent period, was first authorized by the amendment to section 473 of the Greater New York Charter, which took effect May 19, 1908; and a charge for water arrived at in that manner made prior to the time said amendment took effect is unlawful.
    Where, upon a sale of real property in the city of New York, the vendor obligated herself to her vendee either to pay the water rates assessed against the premises during the period from April 29, 1907, to July 30, 1908, or to procure the cancellation of the record lien arising from the charges standing against the premises upon the books of the department of water supply, gas and electricity; and it appears that the meter was repaired on July 30, 1908, and read on October 30, 1908, and a charge made for the period from April 29, 1907, to July 30, 1908, upon the assumption that the daily average consumption of water during that time had been the same as it was for the three months ending October 30, 1908, the vendor is entitled to a peremptory writ of mandamus directing that the charge for the period from April 29, 1907, to May 18, 1908, be stricken from the books of said department and directing that the charge for the period from May 18, to July 30, 1908, be calculated at the average ■ rate of consumption shown by the meter for the period from July 30, 1908, to October 30, 1908, although it is admitted that water was used upon the premises prior to May 18, 1908, when the meter was out of repair, and had not been paid for.
    Upon an application for a peremptory ¡mandamus, the court will not consider in support thereof affidavits, copies of which have not been served with the notice, in compliance with section 2070 of the Code of Civil Procedure.
    Application for a writ of mandamus.
    Goldfogle, Cohn & Lind (Alfred D. Lind, of counsel), for motion.
    Francis K. Pendleton, Corporation Counsel (Edward Maxson, of counsel), opposed.
   Giegerich, J.

The relator, during the period from April 29, 1907, to July 30, 1908, was the owner of certain premises commonly known as No. 2074 Second avenue, in the city of New York. She has since sold the property, biit has obligated herself to her vendee either to pay the water rates assessed against the premises during the period mentioned or to procure the cancellation of the record lien arising from the charges standing against the premises upon the books' of the department of water supply, gas and electricity. The present application is for a peremptory writ of mandamus directing the cancellation of the charge for the period from April 29, 1907, to May 18, 1908, and allowing a charge to be fixed for the remainder of the period from May 18, 1908, to July 30, 1908, on the basis of the average consumption, as shown by the meter thereafter placed in said premises, and in accordance with the registration of the meter for the period from July 30, 1908, to October 30, 1908. It appears that there was a meter on the premises during the whole of the time in question, but that it was out of order and made no record "of the water used. On July 30, 1908, the meter was repaired, and on October 30, 1908, it was read. From the total quantity of water used during the last named period, as shown by the meter, the daily average during that time was calculated, and a charge was then made for the period from April 29, 1907, to July 30, 1908, upon the assumption that the daily average during that time had been the same as it was for the three months ending October 30, 1908. It is freely admitted that water was used upon the premises during the time when the meter was out of order, and that it has not been paid for. The question upon this application, however, is not how much water was used, or whether the municipality can recover in an action, or against whom such recovery might be had, but whether the record lien represents a charge lawfully ascertained or one fixed upon erroneous and illegal principles. Section 473 of the Greater New York charter, dealing with the subject of water rents apportioned according to the dimensions and uses of the premises, also provided: Said rents, including the extra charges aforesaid, shall become a charge and lien upon such houses and lots, respectively, as herein provided, but no charge whatever shall b^e made against any building in which a water meter may have been or shall be placed as provided in this act. In all such cases the charge for water shall be determined only by the quantity of water actually used as shown by said meters.” By chapter 382 of the Laws of 1908 that section and section 475 of the charter were amended so as to provide: That when by any cause or reason the meter shall fail to register correctly, or shall by any defect cease to record the water passing through it, or where said meter shall have been removed from a building for repairs, or for any other reason, then the commissioner of water supply, gas and electricity shall be authorized to charge for the water between the interruption of the registry of the water by said meter, at the average daily registration of water indicated by said meter for the period of three months subsequent to its repair or resetting after it has been properly repaired and reconnected to the service pipes, on his or her premises or place occupied or used as aforesaid.” This amendment went into effect on May 19, 1908, and was the first legislative authorization of a charge for water based upon an average calculated from the measurements shown by the meter for a subsequent period. Of course, it could not alter or affect liabilities incurred before it took effect. Under the provisions of section 473 of the charter, as it stood before the amendment of 1908, it has been decided that a charge arrived at in the precise manner adopted in the present case is unlawful, and that a peremptory writ of mandamus will be granted. People, etc., ex rel. McAuliffe v City of N. Y., 129 App. Div. 551. I have not considered the replying affidavit (People ex rel. O’Donnell v. Bermel, 51 Misc. Rep. 75), and it has, therefore, been returned to the clerk. My conclusion is that the relator is entitled to a peremptory writ of mandamus directing that the charge for the period from April 29, 1907, to May 18, 1908, be stricken from the books of the department of water supply, gas and electricity, and further directing that the charge for the period from May 18, 1908, to July 30, 1908, be calculated by charging at the average rate of consumption shown by the meter for the period from July 30, 1908, to October 30, 1908, with costs and disbursements, the amount of which will be determined upon the settlement of the order.

Ordered accordingly.  