
    The Port Jervis Water Co., Resp't, v. The Village of Port Jervis, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 28, 1893.)
    
    1. Villages—Implied contract to pat por water for public purposes.
    Plaintiff furnished defendant with water for the public fountain, water ■ troughs, jail and hose house, and for sprinkling the streets, without having an actual contract therefor. Held, that a contract for the payment of its value would be implied.
    2. Same—Right of action for claim.
    Where there is sufficient authority in the charter to enable village officers to pay the amount of a just claim presented to them, but they refuse to do so and neglect to put the proper machinery in operation to raise the funds to pay it, the creditor has a right of action against the village therefor.
    
      Appeal from judgment in favor of plaintiff, entered on the decision of the court on a trial without a jury.
    
      Lewis E. Carr, for app'lt; Wm. H. Crane, for resp’t.
   Dykman, J.

This action was for the recovery of the value of water furnished by the plaintiff to the defendant for sprinkling the streets of the village, the public fountains, water troughs, jail and hose house, from the first of May, 1886, to the first of May, 1889.

The case was tried before a judge without a jury, and he rendered a judgment in favor of the plaintiff for the full amount of the claim. The defendant has appealed from the judgment. The facts are practically undisputed, and the defense to the action proceeds upon the absence of an agreement, or the want of power to incur the liability, the finality of the action of the auditing board rejecting the claim and the want of funds.

There is no destitution of power in the municipal authority of this defendant to make contracts for a supply of water for public use in the village, and no limitation of such power inside of the public necessities. There was no contract for the water out of which this claim arises, yet it was furnished and the law will justify an implication of a contract for the payment of its value.

Municipal corporations may be bound upon contracts implied from sufficient facts. “The doctrine of an implied municipal liability applies to cases where money or other property of a party is received under such circumstances that the general law, independent of express contract, imposes the obligation upon the city to do justice without respect to the same.” Nelson v. Mayor, 63 N. Y., 535.

“That corporations maybe bound-upon implied contracts made by its agents and to be deduced from corporate acts, without a vote of the governing body, is now well settled.” Kramrath v. Albany, 127 N. Y., 581; 40 St. Rep., 241.

To the same effect is Dillon on Municipal Corporations, § 383.

The claim of the plaintiff was before the governing body, the defendant, and it was just.

There was sufficient authority in the charter to enable the officers to pay the amount, but they refused to do so, and neglected to put the proper machinery in operation to raise the funds to pay the claim, and under such circumstances the law furnishes the creditor with a remedy by action.

Judgment should be affirmed, with costs.

Pratt, J., concurs; Barnard, P. J., not sitting.  