Town of Colonie v. A. C. Allyn & Co.

Rhodes, J. The question here presented is whether Albany-Schenectady Road Extension No. 2 of the Latham Water District in the town of Colonie was legally created in accordance with [355] the provisions of article 12 of the Town Law, it being asserted by the defendants that it was not validly created in that said extension is not connected with and not contiguous to the balance of said district. • In September, 1929, the Latham Water District was duly authorized and created within the territorial limits of the town of Colonie, and on the 8th of September, 1933, the town board of said town duly made and entered its order and determination further extending said district, said extension being known and denominated as Albany-Schenectady Road Extension No. 2. The boundaries of said extension are not contiguous to the boundaries of the district as theretofore existing, but are connected thereto by pipe lines in public highways and along private rights of way, the distance between the territory of the extension and the balance of the district being about three-fourths of a mile. The territory lying between the previously existing boundaries of said district and the boundaries of said extension is sparsely settled. In 1935 steps were taken by said town for the authorization of the issue and sale of $179,000 of water bonds of said district to provide permanent financing for extensions to said district including said Albany-Schenectady Road Extension No. 2, and on the 29th of August, 1935, the said issue of bonds was sold by the plaintiff to the defendants at public sale in conformity with the provisions of law governing such sales. The bonds were thereafter prepared in behalf of said town and tendered to the defendants who have failed and refused to accept delivery thereof and to pay therefor, upon the claim that said bonds are not legal, subsisting and valid obligations of said town for the reasons above set forth, it being asserted by the defendants that an extension of the district contemplates that the territory embraced in such extension must be contiguous to the territory of the then existing water district. No question is raised as to the legality of said issue of bonds except the validity of the creation of Albany-Schenectady Road Extension No. 2, and that question is based upon the grounds herein stated. Both sides state that they have been unable to find that the point herein involved has been considered or decided in this State. Section 190 of the Town Law provides that 11 Upon a petition, as hereinafter provided, the town board of any town may establish or extend in said town * * * a * * * water * * * district * * * and provide improvements in any such districts, wholly at the expense of the district.” The statute does not in terms expressly require that any extension of a district must be contiguous to the territory of the original [356] district, and nothing in the context suggests an intent requiring a reading into the statute of such a provision. There are practical reasons which may have impelled the Legislature to omit such requirement — for instance, inaccessible terrain may separate parts of the territory to be served, thus rendering it impossible for the district to furnish service to such inaccessible area; also the sources of a water supply may be such as to render it desirable to serve certain areas and exclude certain other intervening areas. (See Matter of City of New York [Juniper Ave.], 233 N. Y. 387; Matter of Syracuse, B. & N. Y. R. R. Co. v. Van Amburgh, 223 App. Div. 485, 491; affd., 251 N. Y. 548.) Without prolonging the discussion we construe the language of the section which permits a town to extend a water district to mean that such extension may be created whether it be contiguous to the original district or not. Judgment should, therefore, be rendered in favor of the plaintiff, declaring that Albany-Schenectady Road Extension No. 2 is a valid extension of Latham Water District, such judgment to be without costs, in accordance with the stipulation of the parties. Hill, P. J., McNamee and Heffernan, JJ., concur; Bliss, J., dissents, with an opinion.