
    Charles Miller, Plaintiff, v. Robert F. Wilke, and Karl H. Wilke, Doing Business under the Firm Name of Wilke Brothers, Defendants.
    Third Department
    July 8, 1913.
    Landlord, and tenant — failure of tenant to pay for excess water — recovery of amount paid by landlord to remove lien.
    A landlord who, having paid the regular water rates on premises leased by him, has also been compelled to pay charges for excess water used by a tenant in conducting a laundry, can recover the amount paid for excess where' he was obliged to do so in order to release the premises from the lien of the city for unpaid water rates.
    
      Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure.
    
      Louis F. O'Neill, for the plaintiff.
    
      Tracey, Cooper & Townsend, for the defendants.
   Kellogg, J.:

The plaintiff rented to the defendants his premises 792-794 Broadway, in Albany, with the buildings thereon. The premises are supplied with city water, for which there is a regular charge against the premises of four dollars and' five cents for each six months. In addition to this regular charge, which must be paid in any event, there are charges for excess water, depending upon the amount used. Apparently, by the regulations of the water bureau, the water is metered to the premises at six cents per hundred cubic feet, from which is deducted the regular water rents on the building for the six months, and the difference represents the charge for excess water.

This excess water was consumed by the defendants for the purposes of their laundry business carried on at said premises. The regular water rents on the building and the excess water charges are liens against the property, and during the occupancy the excess water charges were sixty dollars and ninety-eight cents, which defendants did not pay, and the plaintiff was required to pay to relieve his premises from the lien caused thereby.

The plaintiff claims judgment for that amount, with interest thereon from September 23, 1912. The defendants ask a dismissal of the complaint. Each party asks costs. The plaintiff concedes his liability for the regular service charge made against the building each six months. The lease being silent on the question of water rents, that charge was evidently a tax against the property which belonged to plaintiff to pay. He has no relation to the excess water used in the'laundry business; that was an expense of the business and, like the soap used, must be supplied at the expense of the defendants using it. Under the rules applicable to the city, plaintiff has been compelled to pay for water which the defendants used and for which they are justly chargeable. It was not a voluntary payment.

The plaintiff should, therefore, have judgment for the amount claimed, with interest and costs.

All concurred.

Judgment directed for the plaintiff for the amount claimed, with interest and costs.  