
    (November 5, 1979)
    Anthony Grace & Sons, Inc., Appellant, v City of New York Environmental Protection Administration, Department of Water Resources, Bureau of Water Register, et al., Respondents, et al., Defendant.
   —In an action to recover moneys paid under protest by plaintiff for water charges to the defendant Department of Water Resources of the New York City Environmental Protection Administration, plaintiff appeals (by permission) from an order of the Appellate Term of the Supreme Court for the Second and Eleventh Judicial Districts, dated March 8, 1978, which affirmed a judgment of the Civil Court of the City of New York, Queens County, entered August 19, 1976, which dismissed the complaint at the close of the plaintiff’s case. Order affirmed, with costs. While we agree with the Appellate Term that the city was authorized to collect the water charges at issue herein, we would add, however, that there must be an affirmance on an alternate ground. The record establishes that the plaintiff did, as a matter of fact, use and consume water for construction purposes totally separate and apart from the mixing of concrete (e.g., for the "grooving” of the concrete). Consequently, the plaintiff cannot argue that it was charged for water it did not use. Mollen, P. J., Damiani, Mangano and Martuscello, JJ., concur.  