
    Reid v. Mayor, Etc., of the City of New York.
    
      (Supreme Court, General Term, First Department.
    
    March 14, 1890.)
    Municipal Corporations—Increase of Water-Rents—Estoppel.
    A vendee of land in New York city is charged with notice of the New York consolidation act, (Laws N. Y. 1882, c. 410, § 350,) authorizing the commissioner of public works to establish scales of rent for supplying water, and to modify and increase them from time to time, and making charges for rent a lien on the buildings; and the commissioner is not estopped to raise to the proper amount the back rent for supplying a building with water, by the fact that the vendee, when he purchased the building, examined the books in the commissioner’s office, and found a less amount charged against it.
    Appeal from special term, New York county.
    Action by Walter Reid against the mayor, aldermen, and commonalty of the city of New York, to enjoin the cutting off of the use of Croton water from plaintiff’s buildings, and to have the department of public works cancel a lien for water-rents on said premises of $105. The complaint was dismissed, with costs, and plaintiff appeals.
    Argued before Van Brunt, P. J., and Brady and Daniels, JJ.
    
      Kelly & MacRae, (W. F. MacRae, of counsel,) for appellant. W. H. Clark, (E. H. Hawke, Jr., and Woolsey Carmalt, of counsel,) for respondent.
   Brady, J.

The appellant made a contract on the 17th of April, 1888, for the purchase of certain property known as “321 and 323 East 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 $21 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, $21 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 16 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 $21 could be increased in the manner stated, and, if yes, 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, among others, that the plaintiff had notice of the provisions of the consolidation act, (section 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 may be 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 $21 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 $21 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-Bfth 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. All concur.

NOTE.

The special term opinion referred to is as follows:

“Ingraham, J. By section 350 of the consolidation act, the commissioner of public works is given express power to establish scales of rent for the supplying of water from time to time, and to modify, alter, amend, and increase from time to time, and extend to other description of buildings and establishments, and that all extra charges for water shall be deemed to be included in the regular rents, and shall become a charge and lien upon the buildings upon which they are respectively imposed; and it was decided by Mr. Justice Eawhence in People ex rel. Richardt v. Newton, (December 5, 1887,) not reported, that under this authority the commissioner of public works had power to increase the amount of the rent or charge for Croton water at any time after the 1st of May, and that from the time of such increase the amounts thereof, as increased, became a lien upon the real estate against which the charge is made. It is claimed, however, in this case, that as plaintiff purchased the property subsequent to May 1st, there being upon the date of the purchase a charge against the property in question for Croton water of $21, and he having been entitled to collect the amount of the charge on the property from the vendor, and having retained from the purchase money the sum of $21, the city is estopped from subsequently increasing the rent for Croton water for that year. The scale of rents for Croton water is established by the commissioner of public works, in pursuance of the power conferred upon him by the consolidation act, the amount to be collected depending upon the size of the building, and the use to which it is put, and of the water consumed. Any one purchasing property is charged with notice of the power vested in the commissioner of public works in relation to the charges for Croton water, and buys subject to the exercise of that power. The charges that are made are for the use of the Croton water, and are payable in advance. The fact that on the 1st of May the charge on the hooks of the city of New York was $21 cannot estop the commissioner from exercising the power vested in him by law, to change the amount to he paid for the water during the year. The case differs from that of Curnen v. Mayor, 79 N. Y. 515, for there the officers of the city, by entering in the public record of the assessments against the property the fact that the assessment had been paid, and that plaintiff relied upon that statement, estopped the city from subsequently alleging that the assessment had not been paid. There was the representation of the existence of a fact, and upon that representation the plaintiff acted. In this case all that was represented was that the charge on the books of the city for Croton water was $21, subject to the right of the commissioner of public-works to change the same, and was no representation that the commissioner would not exercise the authority vested in him, and make the change. One of the rules indorsed upon the billfor Croton water-rent, is that, in case of the use of the water not embraced in the bill, the department of public works shall have the right to forfeit the payment, and the supply of water shall be stopped, unless the party shall promptly pay such additional charges as the department may impose; and I do not think that the commissioner of public works was estopped from increasing the charge for Croton water to the amount, under the scale of charges as fixed by him, the property was liable to pay. The complaint should therefore be dismissed, with costs. ” 
      
       See note at end of case.
     