
    The People of the State of New York ex rel. Urban Water Supply Company, Appellant, v. Maurice E. Connolly, as President of the Borough of Queens, City of New York, Respondent.
    Second Department,
    November 6, 1914.
    Statute—construction — corporations—water supply company — contract to furnish water to municipality—Transportation Corporations Law, section 85, construed — amendment of certificate of incorporation— mandamus—right to lay water mains in city of New York — appeal —motion denying reargument of motion for mandamus.
    Where the language of a statute is plain there is no room for construction by the courts, but where general language is employed the courts may determine the legislative intent and the general words must yield to the necessary particular application.
    Section 85 of the Transportation Corporations Law, authorizing an incorporated water supply company operating in a certain locality to contract with other cities, towns or villages to furnish them with water and to file an amended certificate stating the name of the other municipality to be supplied, only applies to those contracts which place the water company in the same legal situation it holds in the territory of its original incorporation.
    
      Henee, a contract by which a water supply company incorporated to supply water in the town of North Hempstead, Nassau county, agrees to deliver water to the mains of the city of New York in a certain ward of a certain borough for one year, with an option on the part of the city to require continuous performance for a period of two or three years, does not entitle the company to amend its certificate so as to be authorized to furnish water to the whole territory of the city of New York or to lay mains for that purpose. This, because the board of estimate and apportionment of the city in making the contract did not attempt to grant a franchise to the water company but merely contracted for a temporary supply which the city itself was to distribute.
    Although said water company purchased the property and franchises of another company which was authorized to carry on the business of supplying water to a certain ward in a borough of New York, it did not acquire the right to furnish water to the city of New York outside of that particular ward, and, hence, mandamus does not lie to compel the borough president to permit it to use the public highways of the borough outside said ward for the purpose of laying and maintaining water mains.
    An alternative writ of mandamus will not issue where there is no controversy as to the essential facts.
    No appeal to the Appellate Division lies from an order of the Special Term denying a relator’s motion for a reargument of a motion for a writ of mandamus.
    Appeal by the relator, Urban Water Supply Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 19th day of August, 1914, denying its motion for a writ of mandamus, and also from an order made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 14th day of September, 1914, denying relator’s motion for leave to renew its application for a writ of mandamus herein, or for a reargument of its first application.
    
      Augustus Van Wyck [Clarence J. Shearn with him on the brief], for the appellant.
    
      William, E. C. Mayer [Terence Farley, Edward S. Malone and Frank L. Polk with him on the brief], for the respondent.
   Carr, J.:

The relator is a water supply company, incorporated under section 80 of the Transportation Corporations Law (Gen. Laws, chap. 40 [Laws of 1890, chap. 566], as amd. by Laws of 1892, chap. 617; now Consol. Laws, chap. 63; Laws of 1909, chap. 219), to furnish for public and private use a,water supply in the town of North Hempstead, Nassau county. It was incorporated in 1906. In 1907, under the appropriate statutory requirements, it acquired a source of water supply in the adjoining county of Queens, in the second ward of the borough of Queens, formerly the old town of Newtown. In 1911 it entered into a contract with the city of New York to furnish water, to be delivered into the mains of the city of New York, in the first ward of the borough of Queens, formerly the old municipal corporation of Long Island City. Under this contract it was to deliver for a fixed price at least 1,000,000 gallons of water a day to the city of New York,' in the neighborhood of a pumping station of said city to be designated by the commissioner. This contract was to run for one year, with an option on the part of the city of New York to require continuous performance for a period of two or three years. The point at which it was selected to deliver the water into the mains of the city of New York was well within the boundaries of the first ward of the borough of Queens; and under its contract the relator laid a delivery main to the designated point, and thereafter supplied the water for a considerable period of time. Subsequently the city of New York constructed a delivery main into the first ward of the borough of Queens from the borough of Brooklyn, and thereupon terminated its contract with the relator. After the contract between the relator and the city of New York had been made, the relator filed in the office of the Secretary of State an amended certificate of incorporation, setting forth the contract between it and the city of New York, and including the city of New York as a part of the territory in which it was thereafter to exercise its corporate functions. By reason of said contract and the amended certificate of incorporation, it claims that it has now the corporate power and duty of maintaining a public water supply within the first ward of the borough of Queens, and, in fact, all the territory of the city of New York. Prior to entering into the contract in question it purchased at a foreclosure sale the tangible property and franchise rights of a corporation known as the Woodside Water Company. This latter corporation had been organized to carry on the business of supplying water in the old town of Newtown, now the second ward of the borough of Queens. So far as the papers before us disclose the Woodside Water Company never acquired any franchise right of furnishing water within Long Island City, now the first ward of the borough of Queens. On the argument of this appeal both orally and in the briefs, some recriminations are indulged in between the respective counsel as to certain statements made in the moving papers in regard to the real or supposed rights of the Woodside Water Company. The relator concedes now that it does not rest, for. the relief which it seeks in this proceeding, upon any claim of right in the Woodside Water Company outside of the territory in the town of Newtown, now the second ward of the borough of Queens. We think this concession is made properly (Wood-side Water Co. v. Long Island City, 23 App. Div. 78; 159 N. Y. 558), and we shall consider any reference in the motion papers as to the supposed rights of the Woodside Water Company as made without any intention to mislead or confuse, but simply as illustrative, so far as it may be so.

Section 80 of the Transportation Corporations Law defines the circumstances under which a water supply company may be incorporated. If its field of operation is to be within an incorporated village, then the written consent of a majority of the board of trustees of said village is required for such incorporation. If, however, its scope of activity lies within a town, not including an incorporated village, then written consent of a majority of the town officers, therein enumerated specifically, is required. Section 81 et seq. of that statute defines the powers and duties of a water supply company incorporated according to its provisions. By section 85 thereof it is provided as follows:

“Corporation may contract with other cities, towns or villages; amended certificate.— When any such corporation has entered into a contract with the authorities of any city, town or village not mentioned in its certificate of incorporation, but situated in the same county as the city, towns or villages mentioned therein or an adjoining county, to supply it with pure and wholesome water, it may file an amended certificate, • stating the name of such other city, town or village to be so supplied with water, and it may thereupon supply any such city, town or village with water in the same manner and with the same rights and subject to' the same requirements as if it had been named in the original certificate of incorporation.”

By a mere inspection of this last statutory provision it is apparent that the language used therein is very general in its terms. The words of the statute are “a contract,” but it is not contended by the appellant .that these words, general as they are, embrace every kind of a contract for water supply that might be entered into. It is true enough that, where the language of a statute is plain, there is no room for construction by the courts, but it is well recognized that the use of general language, however sweeping, does not oust the courts from their power and duty of construction and interpretation to ascertain and apply the legislative intent. General words must yield to the necessary particular application. (People ex rel. Braeburn Assn. v. Hanking, 154 App. Div. 679; affd. on opinion below, 207 N. Y. 761; Staten Island Water Supply Co. v. City of New York, 144 App. Div. 318.)

We think that it is quite plain that the contract referred to in section 85 of the statute must be substantial in its nature; one that requires the water supply company to perform within the territory of the contracting municipality the powers and duties conferred upon it by section 81 of the statute in the locality in which it was incorporated under section 80. We think it is not to be supposed that, under the provisions of section 85 of the statute, the Legislature intended that a corporation entering into a contract therein specified could base its right to an amended certificate of incorporation upon a contract which did not, as far as concerned the locality, place the water supply corporation in precisely the same legal situation as it held in the territory of its original incorporation.

This brings us at once to a consideration of the actual terms of the contract entered into between the relator and the city of New York in 1911. This contract is set up in the motion papers. It appears that the city of New York, in the exercise of the powers and in obedience to the duties imposed upon it by statute, maintained a water supply system in the first ward of the borough of Queens., Through this system of water mains it supplied the inhabitants of that locality. Deeming that its physical supply of water was insufficient, it entered into a contract with the relator to deliver into the mains of the city of New York, at a specified point, a minimum quantity of water. After its delivery into said mains, then the city of New York furnished said water to the inhabitants of the affected locality on its own account. The contract in question was not one that enabled the relator to carry on the business of a water supply corporation within the new locality, dealing directly with its consumers, but it was rather one that obliged it to furnish to the city of New York, in gross, as a commodity, water which the city of New York thereafter and in its own right disposed of, either to its inhabitants or to itself, as the situation might require. Thus it is our opinion that the contract now before us was not the kind of a contract contemplated by section 85 of the statute, and its existence gave to the relator no legal right to claim a franchise power and duty over the territory of the city of New York. We feel that this view of the matter, apart from our construction of the water supply statute, is made very strong indeed, by a reference to the existing statute affecting the city of New York. The contract of the relator with the city was made under the provisions of section 471 of the Greater New York charter (Laws of 1901, chap. 466). On the part of the city it was entered into by the commissioner of water supply, but to give it legal effect its terms had to be approved by the public bodies of the city therein enumerated. It is true that the board of estimate and apportionment of the city of New York, whose consent was required by the provisions of that section of the charter, had power to grant a franchise right to the relator in the streets of the city of New York, but that power did not come from section 471 of the Greater New York charter, but, on the contrary, from section 73 of said charter (as amd. by Laws of 1905, chap. 629). That statute sets off the city of New York, apart from the rest of the State, as a locality in which special circumstances were deemed to exist in regard to the granting of public franchises. It provided that no franchise to use the streets of said city should be granted for a term longer than twenty-five years, and it required that the public bodies granting the franchise should determine whether the property of the party receiving the franchise, and which should grow out thereof, should revert to .the city of New York at the expiration of the franchise, either absolutely or for a compensation to be fixed by the terms of the franchise. In entering into the contract with the relator the procedure required by section 13 and the following sections was not resorted to, and it seems to us apparent that the board of estimate and apportionment of the city of New York did not consider that it was attempting to grant a franchise to the relator when it made a temporary contract for the purchase of a commodity at a fixed price, of which the city of New York was to' dispose to its inhabitants under circumstances and conditions in which the relator had no interest and over which it had no possible control. The terms of the contract expressly precluded an exclusive franchise ” in the. relator under the contract, and, in our judgment, it in no way created any franchise right in the relator to lay its mains and to conduct a system of water supply within the territory of the first ward of the borough of Queens, or any other portion of the city of New York, other than that of the second ward of the borough of Queens, formerly the old town of Newtown, in which it had certain rights acquired by purchase under foreclosure sale of the property and franchise rights of the Woodside Water Company. Hence we think the relator failed to show any legal right for a mandamus against the borough president of Queens to issue permits to it to use the public highways of that borough, outside the second ward thereof, for the purpose of laying and maintaining its water mains.

We are referred by the appellant to an opinion of the late Justice Wilmot Smith in a litigation affecting the rights of the Woodside Water Company to enter into Long Island City for the purpose of a water supply corporation. We have the utmost respect for the memory of Mr. Justice Smith, than whom there was no more amiable justice of this court, and few, if any, better qualified from a juristic aspect. We have only to say that the opinion in question, so far as is concerned the precise question now before us on appeal, is purely obiter. We have not before us in the motion papers the nature and extent of the contract between the Woodside Water Company and Long Island City, which was in the consideration of the learned justice when he expressed his opinion. Some idea of the nature of that contract can be gathered from the report of the decision of this court in Woodside Water Co. v. Long Island City (supra), and it is markedly different in its purpose and scope from the one now before us. However, we will confine ourselves entirely to the papers before us in the record on appeal. It is quite true, as was argued on this appeal by the learned counsel for the appellant, that this relator is not to be burdened with any evil conduct in the past history of the Woodside Water Company. It is equally as true that it has now no more rights as the successor of the Woodside Water Company under the foreclosure sale, than if that corporation was now seeking the relief in this proceeding which the relator asks as a right, to lay water mains in the territory of the city of New York outside the second ward of the borough of Queens.

So far as the essential facts are concerned there is no controversy whatever, and there was, therefore, no necessity of an order granting an alternative writ of mandamus. We think that the order of the Special Term, made after a careful examination of the questions involved, as appears from its opinion (See 86 Mise. Eep. 670) denying a writ of mandamus, should be affirmed. There is now brought up also an appeal from an order made at Special Term, denying the relator’s motion for a reargument of its motion below. The appeal from the latter order must be dismissed, as the order in question was not appealable to this court.

The order denying the motion for a writ of mandamus is affirmed, with ten dollars costs and disbursements, as a matter of law. The appeal from the order denying the relator’s motion for a reargument is dismissed, with ten dollars costs.

Jenks, P. J., Burr, Thomas and Stapleton, JJ., concurred.

Order denying motion for a writ of mandamus affirmed, with ten dollars costs and disbursements, as a matter of law. Appeal from order denying relator’s motion for a reargument dismissed, with ten dollars costs.  