
    CORA MOFFAT, et al., Appellants, v. JAMES HENDERSON, Respondent.
    
      Water-rents—landlord and tenant—rule as to “ extra rates," between.
    
    One of the objects and effects of Laws 1870, ch. 883, § 13, and Laws 1873, ch. 335, § 78, is to make the expense of placing a water-meter upon any of the premises specified in said acts in New York City, and the charge for extra consumption of Croton water over and above the quantity covered by the regular building rate, a lien upon the land.
    There is nothing in said acts or any other statutes, which makes the actual consumer of the extra water personally liable for the water-rates.
    The lien aforesaid which, with the power to cut off the water supply, is the only means of enforcing payment of any such extra water-rent, is given by virtue of the taxing power of the state, as in the case of regular water-rents, by reason of the benefit accruing to the property on which it is imposed. And the rule as between lessor and lessee is, that the lessee is not bound to pay either the extra or regular water-rate except upon covenant, or unless there are circumstances which raise an implied promise so to do.
    
      
      Decided March 24, 1884.
    ' - 1 Where, at the time of the making of the lease, such a meter is upon the premises, and the lease contains a covenant by the lessee to pay “ the regular annual rent or charge .... for Croton water,” and. there is no evidence that the lease does not constitute the whole of the contract between the parties, the lessee having expressly obligated himself to pay a part of the water rate, the implication is, that he was not to pay the other part. And this rule will obtain between the purchaser of the premises from the original lessor, and the assignee of the lessee.
    Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ.
    Appeal by plaintiffs from judgment in favor of defendant entered upon findings of a judge, that complaint be dismissed with costs.
    By a lease under seal, dated July 1,1878, the premises, Nos. 114, 116, 118 and 120 West 46th street, in the city of New York, with the stables and office fixtures thereon, and the appurtenances thereof, were leased to one Stout by Bridget D. Fitzpatrick, as executrix of the will of Philip Fitzpatrick, deceased, and one Anne M. Cary, for a term, ending May 1, 1883.
    On December 31, 1878, all the lessee’s interest was by him assigned to the defendant, and the latter went into possession and carried on the livery stable business. At or about the same time the lessors conveyed the fee of said premises, and assigned the lease between them, and Stout, and all their interest therein, to the plaintiffs.
    The action is brought by the plaintiffs to recover the sum of $182.40, which they were compelled to pay for Croton water, which, during the year 1879, the defendant had used in his business on the demised premises over and above the regular rate, and the quantity of which had been ascertained through a water meter.
    
      Joseph A. Welsh, for appellants.
    I. The bills for the water supplied to the defendant, and used by him in his livery stable business, were his own personal debt.
    However vague the original provisions concerning extra water-rents may have been, the act of 1870 re-enacted in the charter of 1873, placed the supply of water for business uses upon a definite footing, and made that supply a plain sale of water to the consumer by measure (Laws 1870, ch. 383, § 13 ; Laws 1873, ch. 335, § 73 ; Lageman v. Kleppenburg, 2 E. D. S. 126 ; Graham v. Dunigan, 6 Duer, 629 ; S. C., 2 Bosw. 516).
    II. The defendant obtained this water, of the value of $166.85, upon the credit of the plaintiffs. It is clear that the object of the statute, in making these bills a lien on the premises, is to create a substantial security for their payment. The obtaining the water by these means, and omitting to pay for it, and thus subjecting the plaintiffs’ property to liability for it, creates an implied request to them to make the payment, and promise to repay them (Scoles v. Coleman, Wright, 92; Chitty Cont. 6th ed. 594).
    III. The action may be regarded as for money paid for defendant’s use, upon the implied request resulting from the compulsion caused by his conduct (1 Chitty Pl. 351). “It is clear that if money be paid by a person in consequence of a legal liability, to which he is subject, but from which a third person ought to have relieved him by paying the amount, a request will be implied” (Chitty Cont. 6th ed. 594). “Where money has been paid at the request of the defendant, either express or implied, it may be., recovered as money paid to the use of the defendant, though paid in satisfaction of a claim against the defendant which could not be enforced at law.” . . . “Compulsory payments.— But there are instances in which, though the defendant did not (in fact) request the plaintiff to make the payment for him, yet the law will imply such request, and admit no evidence to the contrary. Thus, where the plaintiff is compelled to make a payment, &c.” .... “ Where a party is in a situation where he may be compelled by law to pay a sum of money, although he be not actually compelled to do so, and he pays it accordingly, the action will lie.” To maintain this form of action, no privity of contract, whether of tenancy or otherwise, is necessary. In fact, in nearly all the numerous cases of this class no contract relation existed (Hunt v. Amidon, 4 Hill, 345). Neither is it necessary that the city may sue the defendant personally for the price of the water; although in fact it could. He had the value of the bills and well knew that he was drawing the plaintiffs into a suretyship for them, and his acts imply a request to. them to pay (Scoles v. Coleman, Wright, 92; Brittain v. Lloyd, 14 M. & W. 762; Lewis v. Campbell, 8 M., G. & S. [8 C. B.] 541 ; Grissel v. Robinson, 1 Scott, 329 ; Pawle v. Gunn, 4 Bing. N. C. 445 ; Scholey v. Mumford, 60 N. Y. 501; Graves v. Harwood, 9 Barb. 477; Peck v. Ingersoll, 3 Seld. 528; Wells v. Porter, 7 Wend. 119 ; St. Nicholas Ins. Co. v. Howe, 7 Bosw. 450 ; Exall v. Partridge, 8 T. R. 308 ; Dawson v. Linton, 5 B.& Ald. 521; Brown v. Hodgson, 4 Taunt. 189 ; Pownall v. Ferrand, 6 B. & Cr. 439; Jenkins v. Tucker, 1 H. Bl. 90 ; Gleason v. Dyke, 22 Pick. 390; Nichols v. Buckman, 117 Mass. 488 ; Peconic Bk. v. Smiley, 27 Me. 229 ; Bailey v. Bussing, 28 Conn. 455; Post v. Gilbert, 44 Id. 9).
    IY. These bills were not incurred by defendant in the character of a tenant. The city looks, not to a tenant, but to a “consumer,” “ occupant,” “ receiver and user” of the water. It is immaterial how the consumer gets upon the property. He may be a trespasser; and yet, if being on the property, he has the opportunity to cause damage to the owner in this manner, and does it, he is liable.
    Y. Neither are “ meter charges ” taxes under the acts, and for that reason required to be asumed by a tenant. Nor have they any of the characteristics of a tax. They are not imposed or assessed on property; are not predicated on its value ; are not for a prescribed or definite amount, and are not periodical or even certain. They are personal, fluctuating, irregular, indefinite and uncertain.
    YI. -Considered as liens, these meter bills differ wholly from the “regular rents” with respect to the propriety of stipulating therefor between a landlord and a tena'nt.
    ‘1 Regular rents ’ ’ are prescribed, definite and regular assessments imposed directly upon all properties upon certain streets, entirely independent of the actual use of the Croton water, or even of the occupancy of the property. “ Meter charges,” as has just been stated, are primarily, only items of personal business expense, and, secondarily, a lien for security for their collection. The regular rent, therefore, attaches irrespectively of the existence of any lease and concerns the owner only, unless it be assumed by a tenant as part of his rent. On the other hand, the meter charges do not concern the owner of leased property at all, save as the statute makes his property a security therefor, and no stipulation in the lease could change his position in that regard.
    VII. The inserting in the lease of a covenant by the tenant to pay the ‘6 regular rents,” does not imply that he is not to pay his meter bills. As already shown, the two subjects are not of the same class, and therefore no implication whatever arises from the naming of one of them.
    
      James Henderson and S. Jones, for respondents.
    This action, if sustainable at all, can only be sustained on the theory of money paid by plaintiffs for the use of defendant at his special instance and request. A request, express or implied, is essential. No express request is shown. To raise an implied request, two requisites must concur: 1st. The claim paid must be one for the satisfaction of which the property of the one in favor of whom the request is to be implied can be lawfully taken without any fault, negligence or want of reasonable care on his part. 2d. It must be one which, as between the two between whom the request is to be implied, the one against whom the request is to be implied is bound to pay in the first instance. Thus putting the parties in the position of principal and surety, the one against whom the request is implied being the principal and the one in whose favor it is implied being the surety.
    None of the provisions of law make meter charges, liens or charges on real estate. When we read the acts of 1870 and 1873, we are at once struck with the use of the words “as now provided by law.” This at once leads one’s attention to ascertain what provisions have been made by law whereby these charges are made a lien or charge. Have plaintiffs brought themselves within the first requisite ? The act of 1870, chap. 137, the act of 1853, either as it originally stood or as amended by the act of 1854, do not. Thus we are thrown back to the act of 1849. That act in • terms only makes “regular rents” a charge and lien. It has been held that under this act meter charges are not liens (Treadwell v. Van Schaick, 30 Barb. 444). Consequently there is no provision of law under which these charges are liens. Plaintiff’s property then was not subject to be taken for these charges, nor are they liable therefor ; and consequently they do not bring themselves within the first requisite.
    If these charges are liens they are so by virtue of the taxing power of the state. And as such the lessor and not the lessee is bound to pay them (Taylor's Landlord and Tenant, ed. 1844,161; McAdam's Landlord and Tenant, 1884, 161-162). The lessee in this case has not covenanted to pay them.
    The law assumes that parties enter into contracts in reference to the law, and that they know the law.
    If these charges are liens they are so by the same sections by which the regular rents are ; the lessee having expressly undertaken to pay a part of the liens, it is implied that", he is not to pay the other part on the principle of “ expressio unius, exclusio alteriusB
    
   By the Court.—Freedman, J.

This action is brought by the plaintiffs to recover the sum of $182.40, paid by them under legal compulsion to relieve their real estate from a lien for extra Croton water, which the defendant, while he occupied towards them the relation of a lessee, had consumed in his business as a livery stable keeper carried on upon their premises.

Upon a re-examination of all I said in Hill v. Thompson (since affirmed by the general term). I adhere to the opinion that one of the objects and effects of section 13 of chapter 383 of the Laws of 1870,- and of section 73 of chapter 335 of the Laws of 1873, was and is to make the expense of the placing of a water meter in or upon any of "the premises specified in the said acts, and the charge for extra consumption of Croton water over and above the quantity covered by the regular building rate, a lien upon the land. The words “as now provided by law ” make the lien thus given one of the same character and nature as the lien created by prior legislation for regular water rents. It is also to be enforced in like manner. But there is nothing in said acts, or either of them, or in any other statute, which makes the actual consumer of the extra water personally liable for the meter rates. If such were the case, it would be a grave question whether the land of the lessor could be constitutionally subjected to a lien for the payment of the personal debt of the lessee. But it is not the case. ' The only means of enforcing payment of any extra water rent which exist, consist in the provision for a lien for the a mount due on the premises to which the water is furnished, which lien may be enforced by a sale of the premises, and in the power to cut off the supply of water in case of nonpayment. The lien is therefore given under and by virtue of the taxing power of the state just as it is given for the regular water rents, by reason of the benefit accruing to the property on which it is imposed.

This being so, the rule as between lessor and lessee is, that the lessee is no more bound to pay the extra water-rate than he is bound to pay the regular rate, unless he has covenanted to pay it or unless there are circumstances which raise an implied promise on his part in favor of the lessor. That, in the absence of a covenant to pay, the lessee is not liable to pay the regular rate, or any tax or assessment upon the premises, is a proposition so firmly established as to render it unnecessary to cite authorities.

As between the parties to this action it has already been adjudged in a former action (ante, p. 165) that the defendant is not liable for extra water consumed by him by reason of any covenant in the lease. It therefore remains to be seen whether upon the special facts of the case a promise to pay can be implied.

True, in the year 1879, there was consumed on plaintiff’s premises by the defendant a certain quantity of Croton water which was measured through a meter, and the charge for which over and above the regular rate amounted to $166.85. This charge was not paid, and was returned by the Department of Public Works to the office of the Clerk of Arrears in the Finance Department, and in due course of time and procedure became a lien upon the premises of the plaintiffs. The plaintiffs paid the amount with the interest accrued thereon, amounting altogether to the sum of $182.40, and then brought this action to recover back the money.

But the defendant in the year referred to, was upon the said premises as the assignee of the lease executed by and between his assignor and the assignors of the plaintiffs. The relation between the parties to this action is therefore the same as between lessor and lessee, and as such it is governed in the first instance, if not wholly so, by the terms of the written lease.

Now at the time of the execution of the lease there was a meter in, upon, and attached to the premises. The lease conveyed the premises Nos. 114, 116, 118 and 120 West 46th street in the city of New York, with the stables and office fixtures thereon, and the appurtenances belonging thereto, and, in addition to the reservation of an annual rent of $4,500, contained the following agreement on the part of the lessee, viz. : to keep on said premises during the term of the lease, free of charge, one horse or more and two wagons, harness^ &c., belonging to John Gr. Cary. It also contained the following covenant on the part of the lessee:

“ To pay the regular annual rent or charge which is or may be assessed or imposed according to law upon the said premises for Croton water, on or before the first day of August, in each year, during the term, and if net so paid, the same shall be added to the quarter’s rent then due.”

In view of these covenants, and there being no evidence that the lease did not constitute the whole of the contract between the original parties, and it having been conceded that the defendant did pay all the regular annual water-rent or charge, the case therefore comes down to this : The parties, who must be presumed to have known the law and to have entered into the contract with reference to the law, knew that both the regular and the extra water-rent or charge might become liens upon the land ; that the stables embraced in the lease, with a meter then and there in them, were subject to an extra charge ; and that in the absence of a covenant on the partof the lessee, to pay either charge, •the lessors would have to pay it. With the knowledge of all these matters the parties made the contract they did, by which the lessee was to pay only the regular charge. How then can the court say that the lessors did not, in the rent they reserved, include the extra charge, or that the lessee would have agreed to pay the reserved rent, if he was to be liable for the extra charge. The court cannot make a -new contract between the parties, and the one they did make, is governed by the principle “ expressio unius est exclusio alierius.” The lessee having been expressly obligated to pay a specified part of the water, the implication is that he was not to pay the other part.

The action, if sustainable at all, can only be sustained on the theory of money paid by the plaintiff for the use of the defendant at the latter’s special instance and request. But in the case at bar, there neither was an express request, nor can one be implied. Before the law will raise an implied request in any case, it must appear that the one against whom the request is to be implied, was bound to pay in the first instance, and that the claim paid is one, for the satisfaction of which the property of the one in favor of whom the request is to be implied, can be lawfully taken without any fault or negligence on his part. Whenever these elements concur, the parties are placed in the position of principal and surety, the one against whom the request is implied, being the principal, and the one in whose favor it is implied, being the surety. But in the present case these considerations only lead back to the question as to what the contract was, and upon that it has already been shown the defendant cannot be held.

It appearing, therefore, that the defendant is not liable under the lease, to pay for extra water, and that no promise ro pay for extra water can be implied against him, the plaintiffs’ complaint was properly dismissed.

The judgment should be affirmed, with costs.

Sedgwick, Ch. J., and O’ Gorman, J., concurred. 
      
       See ante, p. 165.
     