Opinion
Argued October 29, 1896
Decided December 1, 1896
Lewis E. Carr for appellant. C.E. Cuddeback for respondent.
This action was brought to recover compensation for water furnished for a public fountain, watering troughs, sprinkling wagons, the village jail and hose houses.
The plaintiff is a corporation operating a system of water works through the village of Port Jervis. The defendant is a municipal corporation. Prior to the first day of May, 1886, the plaintiff had furnished water to the defendant for the extinguishment of fires and for other purposes under a contract for two thousand dollars per year. A controversy then arose between the company and the village trustees as to the amount that should be paid for water in the future, which controversy continued for the three years following; but, in the meantime, plaintiff continued to furnish and the defendant to use the water of the company as it had theretofore done. The act under which the plaintiff was incorporated required the company to furnish water to the defendant for the purpose of extinguishing fires upon such terms as may be agreed upon with the board of village trustees; and, if they cannot agree, application may be made for the appointment of commissioners, who shall prescribe the terms upon which the water shall be furnished. (Laws of 1868, chapter 755, section 16.) Pursuant to the provisions of this act commissioners were appointed who awarded the plaintiff two thousand dollars per year for furnishing water for the extinguishment of fires in the village, and this award, amounting to six thousand dollars in all for the three years in controversy, was paid. The plaintiff then presented its bill to the board of trustees of the defendant corporation for the water furnished to the village for its fountain, watering troughs, sprinkling wagons, etc., amounting to five hundred and forty-eight dollars per year, or one thousand six hundred and forty-four dollars for the three years, which claim the trustees rejected; thereupon this action was brought.
It is contended that the decision of the village trustees rejecting the plaintiff's claim, was an adjudication of a competent tribunal having jurisdiction to act, and that such adjudication is a bar to this action; that the only remedy available to the plaintiff was a review of the determination made by the village trustees. In support of this contention our attention is called to the case of Brady v. Supervisors of New York (2 Sandford, 460; 10 N.Y. 260) and other similar cases, but to our minds these cases are not applicable and have no bearing upon the questions under consideration. Counties and towns are the civil divisions of the state, and as such are not subject to actions, except in so far as the statute has given them corporate capacity, with the right to sue and be sued. With cities and villages it is quite different; they are corporations created by the legislature, and as such may be sued in any of the courts of the state having jurisdiction of the subject-matter. It is true that the charter under which the defendant was incorporated provides for the presenting of claims against the municipality to the board of trustees for audit and allowance, but this provision is for the benefit and protection of the municipality and forms a part in its scheme of government; it enables the trustees to settle and adjust claims without action or expense, and also enables them to estimate and determine the amount of taxes that it will be necessary to levy upon the taxable property in the village. They are not constituted a tribunal for the purpose of final adjudication upon claims which they themselves dispute, for reasons that are obvious; as to such claims, the appropriate remedy is by action. ( Reilly v. City of Albany, 40 Hun, 405; S.C., 112 N.Y. 30; Nelson v. Mayor, etc., 131 N.Y. 4.)
It is also contended that this action cannot be maintained for the reason that no funds were ever appropriated therefor under the provisions of the defendant's charter.
The provisions alluded to are as follows: "Such village shall have no power to borrow money, nor shall it be liable to pay money borrowed on its account, or advanced in its behalf, by its officers or by any other person, nor shall any of its money or property be applied to any such purpose; nor shall such village incur any debt or liability beyond the amount of taxes applicable to the payment of such debts or liabilities, which shall have been voted to be raised in such village according to law."
"No officer of such village shall have power to assent to incurring any debt or liability on the part of such village, contrary to the provisions of this act; nor shall any such debt or liability be paid from the money or property of such village; but all such officers assenting or assuming to assent to any such debt or liability, contrary to the provisions of this act, shall be jointly and severally liable, in their individual capacities, to pay the same." (Laws of 1873, chapter 370, sections 100, 101.)
If these provisions of the charter have reference to, or apply to, the plaintiff's claim, there might be force in the defendant's contention; but in construing the charter, we must take into consideration all of its provisions, and so construe them as to make them harmonious with each other, if possible; and if we find provisions requiring the trustees to contract for terms of years in advance, thus incurring liabilities which could not have been included in an annual assessment, we must deem such provisions excepted from those above referred to. Upon referring to subdivision 14 of section 51 of the charter, we find that the trustees are required, among other things, to "contract with any water company for a supply of water for extinguishing fires, and for the uses of said village at such times and in such manner as the wants of the village may require, but no contract for water or gas shall be for a longer term than three years; and said board of trustees are hereby authorized to insert the annual amount of said bill for water or gas so contracted for in the annual tax levy without submitting the same to a vote of the people." Here we have an authority on the part of the trustees to contract before the taxes applicable thereto are levied; they may contract for a period of three years, and they may insert the amount of the annual contract in the tax levy for that year, without submitting the same to a vote of the people. This presents an entirely different scheme for the contracting of liabilities from that included in sections 100-101, and must, therefore, be deemed to be excepted from, and not included in, those provisions. It is true that no express contract was entered into between the parties for the three years in controversy; but the water was furnished by the plaintiff and accepted by the defendant during that time under circumstances in which the law will imply a contract to pay what the water was fairly and reasonably worth for the period.
Some question has been made with reference to the finding that the village was liable for the water used for the sprinkling of the streets. The undisputed evidence shows that the village constructed and maintained the cranes from which the water was taken for sprinkling purposes; that it, also, paid one man four dollars per month for sprinkling Orange square. It thus appears that there was some evidence in support of the finding of the trial court, and inasmuch as that finding has been affirmed in the General Term, the question is not open for further consideration in this court.
The judgment appealed from should be affirmed, with costs.
All concur.
Judgment affirmed.