
    David L. Whitmore, Who Sues on Behalf of Himself and All Other Private Consumers of Water in the City of Mount Vernon Similarly Situated, Respondent, v. New York Inter-Urban Water Company, Appellant.
    Second Department,
    July 25, 1913.
    Suit to ascertain whether proposed rates by water company are just •— injunction — suit by one party on behalf of himself and others — Code of Civil Procedure, section 448.
    Where a water company, after the expiration of its contract with a city to furnish water for the streets and for the use of the inhabitants at stated rates for a certain period, continues to furnish water on the same terms and proposes to do so until the expiration of the current year, when it threatens to sever the connections made to all the consumers unless they severally sign an agreement to pay the existing rate, increased by • a certain per cent, a consumer may maintain a suit to have the court determine whether or not the rates sought to be enforced are just, and to enjoin the discontinuance of the service.
    Such a suit may be brought by one of the consumers for the benefit of all, under the provision's of section 448 of the Code of Civil Procedure.
    Appeal by the defendant, New York Inter-Urban Water Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 6th day of May, 1913, overruling its demurrer to the complaint.
    
      Arthur E. Walradt [Edwin J. Tetlow with him on the brief], for the appellant.
    
      Frank A. Bennett, for the respondent.
   Thomas, J.:

In 1898 the defendant and the city of Mount Vernon made an agreement whereby franchises in the street were accorded to the former, who agreed to furnish water for the streets an’d for the use of the inhabitants at stated rates for the period of ten years, and, while the contract has expired, the defendant continues to furnish water on the same terms and proposes to do so until the expiration of the present year, when it threatens to sever the connections to the plaintiff and some 5,000 customers, unless they severally sign an agreement to pay the existing rate increased thirty-three and one-third per cent. The plaintiff in this action would compel defendant to furnish water at the rate fixed by the expired contract or at such rate as the court may determine is reasonable, and to enjoin the discontinuance of the service. The allegations as to the contract are ineffective except as showing the history of the service and the present terms of it. The question presented by appellant is whether tho court can fix a rate for future service, anticipating thereby the establishment of an unjust price by the company. That is not the essential inquiry. It is a legislative function to fix charges, but the courts are enabled to prevent the recovery of an unjust rate where none has been established by authority. Hence the defendant urges that the customer’s remedy is to defend against the rate, or pay it and recover the unjust excess, and that a court of equity may intervene pending such litigation to enjoin severance of the connection, or that by mandamus the performance of a legal duty may be enforced. But the defendant has established the rate, demanded submission to it, and threatened exclusion from the supply unless the parties stipulate to accept the proffered terms. Under the allegations in the complaint, this is threatened oppression by the defendant, and, while this court may not prematurely state a maximum rate, it can prevent the defendant from ousting all the inhabitants of the city from their present lawful water supply unless they submit to an extortionate demand, if such should be found. The inhabitants are entitled to the water; they have been established in the physical connection of their houses with defendant’s plants, and a court of equity can prevent the defendant from sundering the relation, and from withholding water from the community, even while proceedings at law may be initiated. If in such action the court cannot forecast rates that may be charged it can state what rate cannot be charged under menace of discontinuing the service. The defendant’s wrongful act is that it threatens to disestablish the takers in their lawful status unless they contractually submit to an imposition, if it shall be so ascertained. The appellant urges that the power to fix rates which a public service corporation may charge resides in the Legislature. (Village of Saratoga Springs v. Saratoga Gas, etc., Co., 191 N. Y. 123, 143.) “It is one thing to inquire whether the rates which have been charged and collected are reasonable—that is a judicial act; but an entirely different thing to prescribe rates which shall be charged in the future — that is a legislative act,” as Hr. Justice Brewer said in Interstate Commerce Commission v. Railway Co. (167 U. S. 479, 499, 511). The matter is fully discussed in Madison v. Madison Gas & Electric Co. (129 Wis. 249; 8 L. R. A. [N. S.] 529). But if the court cannot fix rates for the future, it can declare whether rates enforced, or sought to be enforced, are just, and a court of equity is not constrained to forbear until an entire community is deprived of water, and all house connections with the water plant have been swept away. The court does not wait until a forest has been wrongfully felled if a survey foretelling the act is in progress. Unjust exaction justifies judicial interference; threatened interference with the connection and the supply, unless there be submission to such exaction, is equivalent to it. For the purpose outlined the action is maintainable. But may the plaintiff unite as parties plaintiff other customers? Is there a common right infringed by a wrongful act affecting all ? Where the question is one of a common or general interest of many persons; or where the persons, who might he made parties, are very numerous, and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of all.” (Code Civ. Proc. § 448.) The right to the use of the streets flows from the municipality, and the defendant owes to the inhabitants, because they are such, the duty of furnishing water at a reasonable price. It is true that each right is several in its exercise, but it springs from a duty to the community, and the defendant threatens each one with a breach of duty, not only to him, but to the community and to the State. It would seem to be a fair occasion to invoke the statute.

The interlocutory judgment is affirmed, with costs, with leave to defendant to answer upon payment of costs within twenty days after notice of entry of judgment herein.

Jenks, P. J., Carr and Rich, JJ., concurred; Burr, J., concurred upon the ground that the allegation in the complaint that the .rates sought to be charged are excessive and unreasonable must be deemed admitted by the demurrer.

Interlocutory judgment affirmed, with costs, with leave to defendant to answer upon payment of costs within twenty days after notice of entry of judgment herein.  