
    The Village of Pelham Manor, App’lt, v. The New Rochelle Water Co., Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 13, 1893.)
    
    Water companies — Bight to lay pipes in adjoining village,
    A water company which has received a permit from a village to organize for tlie purpose of supplying it with water, has the right under chapter 56ii, Laws 1890, to lay its pipes in an adjoining village when necessary without the cousent of the latter village.
    Appeal from judgment dismissing complaint.
    
      Jabish Holmes, Jr., for app’lt; Martin J. Keogh, for resp’t.
   Pratt, J.

This is an appeal from a judgment rendered by the court at special term, dismissing the complaint upon the merits, with costs.

The action is brought for an injunction to restrain defendant from laying its water mains in the Boston Post road, being within the municipal limits of the plaintiff, the village of Pelham Manor.

Plaintiff contends that, before defendant can lawfully lay its mains in a public highway in said village, it must first secure the ■consent of the plaintiff. That, not having secured said consent, defendant’s acts, in attempting to so lay its mains, were unlawful and could be restrained by injunction.

The facts in the case are as follows: The plaintiff is a village and municipal corporation, located within the town of Pelham, adjoining the village of New Rochelle. The defendant is a domestic corporation, authorized to supply the village of New Rochelle, in said town of New Rochelle, with water for domestic purposes and public use. *

The rights and powers of defendant are defined by chapter 566, art. 7, § 82, of the Laws of 1890, known as the “ Transportation corporation law.” Section 82 of said law declares that every corporation existing under said act, in addition to its ordinary powers, shall also have power “ to lay their water pipes in any streets or avenues or public places of an adjoining town or village to the town or such village where such permit, a permit authorizing the formation of the corporation referred to in § 80 of the act of 1890, has been obtained.”

The defendant obtained the permit referred to in § 80 of chapter 566 of the Laws of 1890, from the trustees of the village of New Rochelle, which adjoins the village of Pelham Manor. The permit must be signed by a majority of the trustees of the village, and must authorize the formation of the corporation for the purpose of supplying such village with water.

This permit bears date December 8, 1884, but it is to be observed that this permit was granted under the law of 1873, chap. 737, the provisions of which, so far as material to this inquiry, are embraced in chap. 566 of the act of 1890. Thereupon the defendant must be regarded as existing under the law of 1890, and under that act, among its provisions, is the following: “ To lay their water pipes in any streets or avenues or public places of an adjoining town or village to the town or village where such permit has been obtained.”

The defendant, having obtained the permit of, and entered into an agreement with, the village of New Eochelle to supply it with water, brings itself within the statute quoted above, and no permit is required from the authorities of the plaintiff.

In exercising the franchises possessed by the defendants they are performing quasi public functions and cannot be restrained by courts of equity unless they are exceeding their powers.

It is not claimed that the statute of 1890 is invalid, neither did it appear that the acts sought to be restrained would result in irreparable injury to the plaintiff. Village of Tarrytown v. Pocontico Water Works Co., 1 N. Y. Supp., 394; S. C., 15 St. Rep., 816.

It is not material on what point of the compass the plaintiff is located from New Rochelle, as the court below has found: “ Seventh. That it is necessary for the defendant, in order to carry out its contract with the village of New Eochelle, to lay and connect its mains through and under the Boston railroad in the village of Pelham Manor,” and such finding is fully substantiated by the evidence.

We have examined the exceptions taken upon the trial and find none of sufficient merit to warrant a reversal of the judgment.

I may add, in conclusion, that the construction of the statute claimed by the plaintiff cannot prevail, for the reason that if the right to lay a pipe in an adjoining town or village depended entirely .upon a consent to be given by such village, then no water company could supply water to any village unless its source of supply was located in the village to be supplied. We think the construction given by the court below under the facts proved was reasonable and just.

Judgment affirmed, with costs. .

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