
    People ex rel. McGrath v. Green Island Water Co.
    
      (Supreme Court, General Term, Third Department.
    
    February 24, 1890.)
    1. Mandamus—To Water Company—Tender of Rates.
    
      Mandamus will lie against a water company, incorporated under Acts N. Y. 1873, c. 737, as amended by Laws 1885, c. 422, for the purpose of supplying a village “ana its inhabitants” with water, to compel it to perform its contract with a consumer who has paia the rates legally due; but it is not sufficient if he tenders a bond to pay whatever rates the court may adjudge.
    2. Estoppel—Repudiation of Contract.
    When a consumer makes a special contract for five years with, the company for the use of a single faucet for five dollars per year, he cannot, on putting in another faucet, repudiate the contract, and tender the rates provided by the act incorporating the company, which would be more beneficial to him.
    Appeal from special term, Albany county.
    
      Application by Michael McGrath for a writ of mandamus against the Green Island Water Company. The relator is a resident of Green Island. He at •first received water in his house from the company through one faucet, under •a contract with the respondent for five years, at five dollars per year. Subsequently he adapted his house for two families, and put in another faucet for the other family. Water was thereafter received through both faucets for about one year. The respondent charged him $10 for both faucets. The relator tendered $5.50 for the supply for one year, which the respondent refused to accept. The relator bases his motion upon a contract between the respondent and the village of Green Island, to the effect that the rates to be charged by the respondent to consumers should not “exceed the present tariff charged in the city of Troy, ” and that such tariff for a whole house like his would not exceed $5.50.' The respondent does not deny the contract, or the Troy rates., but claims that they do not apply to a house used for two families, nor supersede the special contract for five years. Upon the disagreement the respondent cut off the relator’s whole supply of water. Relator now appeals from ■the order of special term denying a peremptory writ of mandamus, and awarding an alternative writ.
    Argued before Learned, P. J., and Landon and Mayham, JJ.
    
      H. A. King, for appellant. R. A. Parmenter, for respondent.
   Landon, J.

Chapter 737, Laws 1873, as amended by chapter 422, Laws 1885, under which the Green Island Water Company was incorporated, imposes upon the company the duty to supply the inhabitants of Green Island with pure and wholesome water at reasonable rates. The contract between the authorities of the village of Green Island and the company, for the company to supply the village “ and its inhabitants” with such water, and at rates not to exceed those specified in the schedule forming part of the contract, and providing that the rates to consumers shall not exceed the present (1887) tariff ■charged in the city of Troy, was made for the benefit of consumers, and relator as one of such consumers, could avail himself of it, or could make whatever special contract with the company they could agree upon. Whichever contract the relator adopted he could enforce, and performance being made or tendered upon his part, would give him the right to the supply of water in accordance with its terms.

The respondent is a corporation, undertaking, in view of its franchises of ■a public character, and expressly charged with the duty to perform, a certain service to all who pay certain fees or rates therefor, and can therefore be compelled by mandamus to perform such service. People v. Railroad Co., 104 N. Y. 58, 9 N. E. Rep. 856; People v. Railroad Co., 28 Hun, 543. When ■the character of the service charged upon the corporation is such as it would be competent for the legislature to intrust to municipal corporations and public officers, no reason is perceived why a mandamus will not lie at the suit of the party aggrieved in the same manner as it would in like case against such ■corporations or officers. The relator must be destitute of any other adequate remedy. Still the courts will be slow to assume that he has any adequate remedy for the non-performance of a quasi official duty in his behalf, or for the deprivation of one of the necessaries of life. But his legal right must be clear. In this case the relator is entitled to the writ of peremptory mandamus if he has paid or tendered payment of the rates legally due; otherwise, not. It appears that in January, 1888, he made a contract with the respondent for the supply of water from a single faucet at the rate of five dollars per year for five years. His house was then occupied by one family only. Since then he has adapted it to two families, and put in an additional faucet for the second family, and he now claims the right to the supply for both families at the Troy rate of $5.50 for the whole house, and refuses to pay more. We do not think this position tenable, for the contract exists as to the first faucet at five dollors, and so long as that contract remains it governs as to that. There is no-provision in the Troy schedule that in such case additional faucets shall be supplied at the rate of 50 cents each. He cannot be permitted to take the benefit of his special contract so long as it most benefits him, and repudiate it when he finds that the Troy schedule would be more beneficial.

The relator claims that he has tendered the respondent a bond to pay whatever rates the court may adjudge. But that is not full tender of present performance; it is a conditional tender, and therefore does not give a clear present legal right. Suppose the county clerk is entitled to one dollar for recording a paper, and the relator should tender 50 cents in money and a bond to pay the balance, if the court should so adjudge. It would not be claimed that ■mandamus would lie against the clerk to compel him to record the paper. This case does not differ in principle. If, before the water had been cut off, the relator had brought his action to restrain the respondent from cutting it off, at the same time offering to pay whatever sum should be found due, such action perhaps would be well brought. The action would have for its object the settlement of a dispute, relief against injury pending the action, and provision for doing what equity requires. Such was Sickles v. Gas-Light Co., 64 How. Pr. 33, 66 How. Pr. 304. But an application for a peremptory writ of mandamus assumes that no material facts are in dispute. Both parties stand upon their legal rights. If the relator is clearly right, he succeeds1; otherwise, he fails. Order affirmed, with $10 costs.

Learned, P. J., concurs. Mayham, J., takes no part.  