
    Fred A. Holroyd and Henry S. Eveline, Plaintiffs, v. The Town of Indian Lake, Defendant.
    (Supreme Court, Fulton. Special Term,
    February, 1903.)
    ’Town—Contract for water-mains and sewers — Ii. 1900, ch. 451.
    A complaint, against a town, by contractors with commissioners of a town water district appointed by the town board under L. 1900, ch. 451, for damages for a breach preventing full performance of a contract for water mains and sewers, is not demurrable by the town upon the ground that the water district created by the act is a municipal corporation and this because the act confers upon the water ■district no powers of municipal government.
    The water district remains an integral part of the town; the town :may lawfully incur indebtedness for the water system as a local improvement for the general welfare and may lawfully become •primarily liable for the cost, although it is to be assessed ultimately ■upon the residents of a particular district of the town.
    The provision of the said act which confers upon the town board -authority to appoint commissioners and, upon them, authority to •execute the contract, is legal.
    The contract binds the town, although made in the name of the •commissioners.
    The contract may lawfully provide for sewers as well as water mains.
    Demurrer to complaint in an action for breach of .contract.
    •J. W. Atkinson, for plaintiffs.
    Potter & Kellogg, for defendant.
   Spencer, J.

On the -trial of this issue, the court was requested by both parties to ignore objections in respect to the sufficiency •of the pleadings and to decide the case upon the merits. Therefore, I shall consider only those questions which bear upon the right of the plaintiffs to maintain .the action; and, for that purpose, shall assume that the facts are properly and sufficiently alleged. ■

The contract, for the breach of which this action is brought, was executed between the plaintiffs and the commissioners of a water district in the town of Indian Lake, appointed by the town board pursuant to chapter 451 of the Laws of 1900. The complaint alleges the proceeding’s taken to establish the district, the appointment of the commissioners, the execution of the contract, its breach while the plaintiffs were engaged in performance; and, by several counts, demands judgment for the amount earned in partial performance, damages for the breach, and for loss of prospective profits.

The defendant demurs, claiming: (1) That the water district established under the provisions of the act is a municipal corporation; (2) that the water commissioners are officers and agents of such district and not of the town; (3) that if regarded as town officers or agents, the act authorizing their appointment is unconstitutional; (4) that the contract does not purport to be made in behalf of the town and the town is not bound thereby; (5) that the contract is void for including matters not within the scope of the powers of the commissioners.

Confining our attention to these claims made upon the trial, we note that the act (Laws of 1900, chap. 451) providing for the establishment of water districts does not constitute them municipal corporations. No powers of local government are conferred. This seems to be necessary within the provisions of subdivision 1 of section 3 of the General Corporation Law in order to create municipal corporations. The districts which may‘be carved out of a township under the provisions of the act may be regarded as standing in the same relation to the town as sewer districts in cities stand in relation to the city. They are established mainly for the purpose of imposing the expense of local improvements upon the persons and property more immediately benefited by the improvements. The fact that the persons authorized to make the contracts therefor and to annually apportion, upon the taxable property within the district, the amount to be raised to defray the expense, does not confer upon them powers, of local government. The people of the district- are the only ones interested in those matters and the powers conferred are limited to such particulars. Authority to'execute a contract is not governmental in its nature; and the duty of maldng apportionments, under the statute, is clerical in its character. The assessment of' the property, the imposition of the tax and its collection are still performed by the town officers. The general scheme of the act seems in all respects to be in harmony with similar provisions in the charters of numerous cities in respect to local improvements, and those provisions have never been regarded as constituting municipal corporations of such districts.

As these water districts remain integral parts of the town, the provision of the organic law prohibiting the Legislature from authorizing1 a town to incur' indebtedness for any except town purposes does not apply. (Const., art. VIII, § 10.) A town may incur'indebtedness for any local improvement that may be for the general welfare, although the direct benefits therefrom accrue more particularly to the residents of a designated district within the town. Reither is it a diversion of the money or property of the town for it to become primarily liable for the expense of such a local improvement, although payment of the expense is ultimately to be made by the residents of a particular district within the town. There is nothing in the statute that limits the use of the water to the inhabitants of the designated district, nor any provision which gives them any prerogative thereto. Therefore, the rule adopted in respect to the improvement and lighting of public highways must be regarded as having application. Sun Pub. Assn. v. Mayor, 152 N. Y. 257; Palmer v. Larchmont Electric Co., 158 id. 231.

Reither is that provision of the act which, confers upon the town board the authority to appoint commissioners and authorizes such commissioners to execute the contract, violative of the organic law. Astor v. Mayor, 62 N. Y. 567; People ex rel. Commissioners v. Supervisors, 170 id. 105. I think, therefore, that contracts made by such commissioners under and in pursuance' of the provisions of the act, are binding upon the town, as being in the accomplishment of town purposes.

The contention that the contract is not binding upon the defendant because it is made in the name of the commissioners is without support. It is true the contract does not in terms purport to bind the town and does not refer to the act under which the water district was established and the commissioners appointed. But the complaint sets forth .the facts in relation to the establishment of the district and the appointment of the commissioners, and the making of the contract in pursuance of the provisions of the act. This I regard as sufficient to support the

contract as one made -, by the town, the commissioners having authority to bind the town by a contract for the purposes intended. Fleming v. Village of Suspension Bridge, 92 N. Y. 368.

The further objection that the contract is void for providing for the construction of sewers as well as water mains must, I think, also be overruled. The act authorizes the establishment of a water system but does not specify the particulars that shall constitute such a system. • That question is left to the judgment of' the people as evidenced by their petition asking for the establishment of the district and the appointment of the commissioners. Furthermore, I think the court should take judicial notice that in -the establishment of a water system, the laying of pipes for the discharge of the water, as well as for its delivery, is a feature incidental to the system.

Demurrer overruled, with leave to answer on payment of costs.  