
    Walter Reid, App’lt, v. The Mayor, etc., of New York, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 14, 1890.)
    
    Municipal corporations—Water rents—Estoppel.
    Plaintiff, on purchasing certain premises, caused a search for water rents to he made, which showed twenty-one dollars to be due for that year, which sum was allowed by his grantor; but the city subsequently refused to receive that sum on the ground that the buildings had been enlarged and the correct charge was §105. Held, that the commissioner of public works had power to make the change and that the city was not estopped from collecting the increased rent by the search which was made.
    Appeal from judgment of special term dismissing complaint.
    
      W F. Mac Bae, for app’lt; F. H. Hawke, Jr., for resp’t.
   Brady, J.

The appellant made a contract on the 17th of April, 1888, for the purchase of certain property known as 321 and 323 Bast One hundred and fourteenth street in the city of New York. Prior to taking the title he caused a search to be made in the office of the department of public works for unpaid water rents affecting the premises, which was done down to and including the 15th of May, 1888, upon which day the title was closed. The search revealed a charge of twenty-one dollars for unpaid water rents commencing on the 1st of May, 1888. The sum mentioned was allowed by his grantor and on, the Monday following, and therefore subsequent to the closing of the title, twenty-one dollars was tendered to the department of public works and declined on the ground that it was not a correct charge for the use of the Croton water, and the reason for not accepting it was upon the trial made apparent, and it was that that sum was charged upon buildings formerly standing upon the property but which subsequent to the 1st of May, 1887, were torn down to permit the erection of two other buildings containing tenements for sixteen families with the necessary water closets in each building, and the amount was therefore increased by proper measurements to the sum of $105, which was duly charged upon the books of the department.

The question presented was whether the charge of twenty-one dollars could be increased in the manner stated, and if yea, whether the defendants were estopped from enforcing it by the search to which reference has been made.

The learned justice in the court below, in an opinion which fully discusses the question, held that the city was not concluded in any way by the charge made, for the reason, amongst others, that the plaintiff had notice of the provisions of the Consolidation Act, § 350, which declared that although the commissioner of public works was required to establish scales of rents for supplying water, he might modify, alter and increase such scales from time to time. The opinion referred to is adopted as a correct exposition of the law by which the questions upon this appeal are to be governed and disposed of.

It maybe added, however, with seeming propriety, that the facts herein established illustrate conclusively the justice of the provision by which the charge may be altered and increased from time to time. .The sum of twenty-one dollars was adopted as appropriate to an entirely different class of buildings, and before it was received the change took place of which the plaintiff complains, and which was made in accordance with the established rules of the department and applied generally throughout the city.

It must be said, therefore, that aside from the absolute power of change given to the commissioner, and which was essential to secure proper compensation for the use of the water, the plaintiff presents a case which has no equitable plea to sustain it. If the sum of twenty-one dollars only had been exacted, he would have been in the use of a quantity of croton water for which he would have paid only one-fifth of the proper charge. The construction given to the statute in the court below is one which makes the statute effective to prevent such inequalities and it should be sustained.

With regard to the cases cited by the learned counsel for the appellant, it is sufficient to say that the provisions of the statute controlling the subject under investigation are such as to render them inapplicable. And it must be borne in mind that the charge for the use of water is governed by principles essentially different' from those regulating and controlling the imposition of taxes

The judgment should be affirmed, with costs.

Van Brunt, P. J., and Daniels, J., concur.  