
    Samuel Williams and Samuel Grodginsky, Respondents, v. Maximillian Fraade, Appellant.
    (Supreme Court, Appellate Term
    February, 1907.)
    Vendor and purchaser — Performance of the contract —Purchaser’s right to discharge incumbrances with purchase money — Under agreement to pay all water bills.
    Municipal corporations — Taxation and water rents — Water rents.
    An agreement by a vendor of premises in the city of New York to pay “ any water bills ” is to be construed as intending legal bills and not bills based on consumption during prior like periods of time and not upon the reading of the meter which was defective; and where the purchaser paid such bills he cannot recover the amount thereof against the vendor under such agreement.
    
      Appeal by the defendant from a judgment of the Municipal Court of the city of New York, eleventh district, borough of Manhattan, rendered in favor of the plaintiffs.
    Stephen Brooks Rosenthal (Arnold Gross, of counsel), for appellant.
    Krakower & Peters (Charles C. Peters, of counsel), for respondents.
   Gildersleeve, J.

The plaintiffs bought a house of defendant, who agreed to pay the water tax, but did not do so. Plaintiffs paid the water tax, in order to sell the property to another. The tax department rendered an improper bill, baped not on the meter, which was defective, but upon an average amount founded on the water rent for one or two weeks during which the meter worked correctly, although the premises were vacant for a'year, during the time for which the average was made. This seems to be an incorrect method of arriving at the amount due for. water rent, which should be ascertained by the meter. Healy v. City of New York, 90 App. Div. 174. The plaintiffs sue to recover the amount of the water bill from defendant, over and above a certain sum which had been deposited by the defendant for the payment of any water charges against the premises. The justice gave judgment for plaintiffs, and defendant appeals. There is no pretense that the defect in the meter was due in any way to defendant, or that he knew of it. The agreement of the defendant to pay “ any water bills ” did not take away from him the right to set up the same defense against plaintiffs that he would have had were the action brought direct by the water department, as his agreement meant only that he would pay the legal bills, not any bill that might be presented, no matter how exorbitant or unjust.

MacLean and Amend, JJ., concur.

Judgment reversed and new trial ordered with costs to appellant to abide event.  