
    Albert Krumenaker, Respondent, v. J. Hampden Dougherty, as Commissioner of Water Supply, Gas and Electricity of the City of New York, Appellant.
    
      Fraudulent use of a water pipe not connected with the meter — right of the commissioner to out off the supply unless a sum designated by him is paid for water consumed and not registered.
    
    March 1, 1902, an examination of premises in the city of New York, upon which a water meter had been installed for the purpose of registering the quantity of water used upon the premises, disclosed the existence of two service pipes, only one of which was connected with the meter and the circumstances indicated that the owner of the premises was using the unmetered service pipe with guilty knowledge.
    It was found that, for a period of fifty-six days, during which time the unmetered service pipe was in operation, the average daily consumption registered by the meter was 41 cubic feet, while the average daily consumption registered by the meter for a period of nineteen days, after the use of the unmetered service pipe was discontinued, was 744 cubic feet. With these figures as a basis the commissioner of the water supply, gas and electricity then sent to the owner of the premises a bill for §991.19 for water used covering the period between November 9, 1896, and March 11, 1902, and threatened to cut off the supply of water to the premises unless the bill was paid.
    
      Held, that the commissioner of water supply, gas and electricity had authority to cut off the owner’s supply of water if he failed to pay such bill.
    Appeal by the defendant, J. Hampden Dougherty, as commissioner of water supply, gas and electricity of the city of New York, from an order of the Supreme Court, made at the New York . Special Term and entered in the office of the clerk of the county of New York on the 21st day of May, 1902, continuing an injunction pendente lite.
    
    
      Chase Mellen, for the appellant.
    
      David C. Myers, for the respondent.
   Hatch, J.:

The plaintiff is the owner of premises Nos. 512-514 West One Hundred and Sixty-sixth street in the borough of Manhattan, city of New York, Upon these premises the plaintiff carries on the business of beer bottling, and also uses a part of the same for the residence of his family. Upon the premises. there has heretofore been installed by the city of New York a water meter for the purpose of registering the quantity of water supplied to said premises. Upon the 12th day of March, 1902, the defendant presented a water bill to the plaintiff for water used covering the period between November 9, 1896, and March 11, 1902j amounting to the sum of $991.19. This bill the plaintiff refused to pay and thereupon the defendant threatened to cut off the supply of water furnished to said premises unless the jfiaintiff paid the same. The latter alleges that he does not owe the amount of such bill; that the threatened action of the defendant is illegal and wrongful; that if it is done the plaintiff will suffer irreparable damage therefrom. For which reasons he asks the defendant be enjoined from cutting off such supply.

Upon motion made, the court complied with the plaintiff’s request and continued the injunction. We think that it is established beyond doubt, both by the papers in opposition to the motion and by the affidavits submitted by the plaintiff in reply thereto, that the plaintiff has been engaged in the illegal appropriation of water for the supply of his premises and the business thereon conducted by him. From all the papers in the case, we deem the following facts fairly established: On the 1st day of March, 1902, there was found upon these premises two water service pipes entering the same, to only one of which was the water meter attached. The pipes operated in supplying water jointly or independently at the will of the owner and water was supplied through both pipes. By means of a stop cock water could be shut off from one pipe and supplied by the other and when it was shut off from the pipe attached to the meter the other pipe supplied all of the water necessary for use upon the premises without registering the amount. Between the 1st and 17th days of March, 1902, the unmetered service pipe was disconnected from the premises by removing a section of such pipe about four or five feet in length; during that period no water was passing through such pipe into the building. It is fairly established, therefore, that the plaintiff was engaged in making illegal abstraction of water from the city water supply without paying therefor, in fraud of the rights of the municipality. It is evident, therefore, that he does not come into this court with clean hands and is, therefore, not entitled to the favorable consideration of the court. An exami.nation of the record kept by the meter between the 4th day of January, 1902, and the first day of March of the same year, when the •unmetered service pipe was in operation, shows that there was registered by the meter a consumption of 2,300 cubic feet of water an average of about 41- feet per day for-a period of■ fifty-six days. From March first to March twentieth, during the period when such unmetered service p>ipe was disconnected and all water furnished to the premises was forced to pass through the pipe to which the meter was attached, the consumption was 14,140 cubic feet, or an average of 744 feet per day for a period of nineteen days. These figures are eloquent in description of the use made of the unmetered service ¡lipe. With these figures as a basis, computation was made resulting in the bill which was presented to the plaintiff for payment.. It is evident that the exact amount of water which passed through the unmetered service pipe and of which the city was defrauded'of revenue can never be accurately measured or ascertained. It must always be the subject of approximation, based substantially upon a consideration of the facts as ascertained from the inspection and the measurement of the supply which passed through, the meter after the unmetered service pipe was disconnected and the volume of plaintiff’s business. It is evident also that the plaintiff understood, as fully as did the city, the illegal use which he had been making of the unmetered service pipíe and of the fraud which he had perpetrated upon the municipality. His offer- of $600 in compromise of the bill, coupiled with his admission of knowledge of the service pipe, although accompanied with a denial that lie had made use of it, is plainly significant of guilty knowledge upon his part.

Occupying this position and having -for all practical purposes conceded the unlawful use, it -only remains to be seen whether the defendant has authority of law to summarily cut off the defendant’s supply of water. By the provisions of section 478 of the Greater New York charter (Laws of 1897, chap). 378, as amd. by Laws of 1901, chapi. 466), authority is given to cut off the use of water for any violation of the rules of the water department, and by section 469 of the charter it is made.the duty'of the defendant to collect the revenues from the sale and use of water from the public water supply.- It does not need argument to show that defrauding the city of its revenues authorized the commissioner of water sup ply to take action thereon, and if the bill was not paid for the water used, the statute furnishes abundant remedy for the proposed action. In Brass v. Rathbone (153 N. Y. 435) Judge Martin, in speaking for the court, said : “ As the statute organizing the defendants provided that they might epf orce a compliance with their rules by shutting off the water, the act threatened was justified' and could not be properly restrained. * * * That right having been conferred upon the defendants by law, the court had no authority to prevent its exercise.” The statutory authority in the present case authorizing such •action is as broad as was the authority in the case then under consideration by the court. The doctrine of this case was recognized in McEntee v. Kingston Water Co. (165 N. Y. 27). Therein it was held error to vacate an injunction restraining the city from cutting off the water supply, but this was for the reason that statutory authority was not given in that case to cut off the supply and the case itself presented a clear question of fact as to whether' the defendant had fulfilled its contract with the plaintiff in furnishing a sufficient supply of water as was required by it. The right here recognized also received support in Silkman v. Water Commissioners (152 N. Y. 327).

It is evident upon the whole record that the plaintiff has been treated as fairly by the defendant as he was entitled. By his act, the accurate measurement of the amount of water which he has consumed and for which he has not paid can only be approximately determined and he is in no position to ask that the court strain any rule in his favor.

It follows that the order should be reversed, with ten dollars costs and disbursements, and the motion be denied, with ten dollars costs, and the injunction be dissolved.

Van Brunt, P. J., Patterson, Ingraham and Laitghlin, JJ., concurred.

Order reversed, with ten dollars and disbursements, and motion, denied, with ten dollars costs, and injunction dissolved..  