Brass v. . Rathbone

Martix, J. The purpose of this action was to obtain a permanent injunction restraining the defendants from shutting off the water upon premises owned by the plaintiffs in the city of Albany. The defendants are the water commissioners, appointed under the provisions of chapter 235 of the Laws of 1850, which was an act to provide for a supply of water in that city. By the statute the defendants were authorized to make such by-laws or regulations for the jn’eservation, protec *439 tion and management of the water works to be constructed by them, and for the use and control of the water, as might be deemed advisable, which, when ratified or approved by the common council, were to have the same force and effect as any law or ordinance by them enacted. (§ 19.) The same act provided that the observance of the rules made by the water commissioners might be enforced by cutting off the use and supply of water. (§ 29.) They were also authorized to establish a scale of rents to be charged for the supply of water, to be known as “ water rents,” which were to be apportioned to the different classes of buildings in the city, in reference to their dimensions, values, exposures to fires, ordinary uses for dwellings, stores, private stables and other common purposes, number of families or occupants, or consumption of water as near as might be practicable. (§ 23.) It likewise provided that hotels, factories, stables and other buildings which should consume water beyond the quantity required for ordinary uses or common purposes, as specified •in section twenty-three, should pay therefor, as special rates, in addition to the rents established, such sum as the commissioners should determine. (§ 25, Am. Ch. 253, L. 1854.) In pursuance of this statute, the defendants made certain rules or regulations, which were approved and ratified by the common council. One of the rules provided that occupants of buildings, assessed for annual water rents, should be allowed to use in and about their buildings one hundred and fifty gallons of water daily for ordinary use, and not exceeding that quantity without a special permit. Another was to the effect that if more water was used in any building without a permit than was allowed by the regulations, the occupant should be liable to a penalty to be fixed by the commissioners, and the superintendent, in his discretion, was anthorized to shut off the supply of "water. It further provided that where the superintendent shut off the water pursuant to this regulation, it might be restored by the party’s conforming to his directions and paying all expenses incurred, and that any person who should feel aggrieved by the shutting off of *440 the water might appeal to the water commissioners, who should finally determine the matter. For the year ending December 1, 1895, the ¡plaintiffs paid fifteen dollars for ordinary annual water rents. By that payment they or their tenant became entitled to use one hundred and fifty gallons of water daily and no more. Prior to the commencement of this action the defendants placed a meter upon the pipes leading to the plaintiffs’ building, and thereby ascertained that their tenant was using from two thousand to five thousand gallons daily, instead of one hundred and fifty. For the additional amount of water thus used from December 18, 1894, to May 15, 1895, at the price established by the defendants’ rules, the sum of $60.73 was properly chargeable. Thereupon the defendants served a notice upon the plaintiffs requesting the payment of that amount, and stating that unless it was paid the water to the plaintiffs’ building would be shut off. That this additional amount of water was used is not denied. The rules of the water commissioners were indorsed upon the bills presented, so that the plaintiffs must have been aware of the defendants’ authority to charge special rates where an excess of water was used, and to shut it off in case the amount was not paid. In Silkman v. Water Commissioners (152 N. Y. 327) this court held that rents charged by a public corporation for water actually used by private consumers were not in any just sense taxes, but that persons using the water were liable to pay for the amount used according to the rates established, upon the ground of an implied contract between the parties, and that as the rates were known to the persons applying for a supply of water when the application was made, it was in effect an assent bjr the applicant to the terms provided by the rules, and constituted a contract between the parties. In that case, as in this, the action was to restrain the defendant from shutting off the water to the plaintiff’s premises, and it was there held that the action could not be maintained. We think the facts in this case bring it within the principle *441 of the decision in the Silkman case, and that there was an implied, if not an express, contract between the plaintiffs and the defendants that the former would pay the prices established by the water board for water used upon the premises, including special rates where more than one hundred and fifty gallons 'were used daily, and that, in default of payment, the water might be shut off. Thus, the right of the defendants to shut off the water when it was not paid for was not only given by statute, but it was also a part of the agreement between the ]3arties. As the statute organizing the defendants provided that they might enforce a compliance with their rules by shutting off the water, the act threatened was justified and could not be properly restrained. That the legislature was authorized to confer that power upon the defendants, there can be no doubt. We practically so held in the Silkman case. That right having been conferred upon the defendants by law, the court had no authority to prevent its exercise. There is another ground upon which the judgment should be upheld. The property in regard to which this action was brought was not in the plaintiffs’ possession or under their control. It was in the sole possession of their tenant, who improperly wasted or used the excess of water complained of. That his use of the water without a special permit was unlawful and unauthorized is obvious. He could use that amount only when authorized by a special permit, and upon payment of the special rates provided by the rules of the water commissioners. Any injury that might be produced by shutting off the water before the expiration of his term would be an injury to the tenant and not to the plaintiffs. Under the circumstances proved, the tenant could not claim an eviction in consequence of not being supplied with water. Bor would he have any right to vacate the premises as being untenantable under the provisions of chapter 345 of the Laws of 1860, as that statute confers such a right only when the premises become untenantable and unfit for occupation without any fault or neglect of the tenant. *442 It may be that the act of the tenant in wrongfully using an excess of water without permit or compensation, would not affect the rights of the plaintiffs after the expiration of his tenancy and after they had resumed possession of the premises, as to hold otherwise might result in making them liable for a wrong for which they were in no way responsible. (Morey v. Metropolitan Gas Light Co., 38 N. Y. Supr. Ct. R. [6 J. & S.] 185.) But neither that question nor the question of the plaintiffs’ liability as landlord for the water wrongfully used by their tenant is before us. The tenant was the only person to be affected during the continuance of his tenancy by the threatened act of the defendants, and, as it was the result of his own wrong, he has no remedy. As the plaintiffs would not be injured by shutting off the water during the continuance of such tenancy, clearly they were not entitled to the r’elief demanded. The plaintiffs obviously seek to maintain this suit upon the ground that the threatened acts of the defendants would produce irreparable injury to them and their property. The only allegation in their complaint, however, is that the discontinuance of the supply of water to their premises would work a great hardship to the tenant and produce great and irreparable injury to the plaintiffs. But no facts are stated in the complaint justifying that conclusion. The mere allegation of great or irreparable injury apprehended or threatened, which is not supported by facts, or circumstances tending to justify it, is clearly insufficient. Therefore, the complaint does not show that the plaintiffs were entitled to relief by injunction. (McHenry v. Jewett, 90 N. Y. 58, 62.) On the trial there was no proof that the threatened act of the defendants would produce any permanent or irreparable injury to the plaintiffs’ property, or that they had no adequate legal remedy. BTor was any other special ground shown which was sufficient to confer jurisdiction upon a court of equity to grant the relief sought. The granting or refusing of equitable relief by way of injunction depends largely upon the particular facts in each case, and is to a great extent discretionary with *443 the courts in which the action originated. ( Wormser v. Brown, 149 N. Y. 163, 172.) Other questions were presented by the learned counsel for the appellants which have been carefully examined and considered, without finding any ruling or action by the court below that would justify a reversal or which requires furthei* consideration. The judgment should be affirmed, with costs. All concur, except Gray, J., absent. Judgment affirmed.