Commissioners v. Northport Water Works Co.

Appellate Division of the Supreme Court of New York

Commissioners v. Northport Water Works Co.

240 A.D. 1005

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 15, 1933

StatusPublished

This text of 240 A.D. 1005 (Commissioners v. Northport Water Works Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Commissioners v. Northport Water Works Co., 240 A.D. 1005 (N.Y. Ct. App. 1933).

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Opinion

Order dismissing alternative mandamus order reversed upon the law and the facts, with costs to the appellant to abide the event, and a new trial granted. The conclusion reached by the trial court, that the respondent was financially unable to comply with the requirements of the fire district for an extension of the fire hydrant supply, is not supported by evidence of a satisfactory character. The conclusion that the demand was improper in requiring the installation of four hydrants at locations outside the fire district was erroneous. Even if the evidence established such location of the said four hydrants — and the weight of evidence does not seem to point to that result — it was the duty of the court to mould the writ “ according to the just rights of all the parties.” (People ex rel. Keene v. Supervisors, 142 N. Y. 271, at p. 278.) We are of the further opinion that the respondent may not demand the payment of the alleged debt as a condition to the issuance of the mandamus order. The debt was disputed, and the creditor has its common-law remedy. We are also of opinion that conditions obtaining at the time of the retrial, herein directed, shall be the guide for the relief sought, and not conditions as they existed on the date of the demand in March, 1932. Findings of fact numbered 5, 6, 7, 8, 9, 10, 12, 13 and 14 are reversed. Lazansky, P. J., Young, Kapper, Carswell and Davis, JJ., concur. [146 Misc. 486.]

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Order dismissing alternative mandamus order reversed upon the law and the facts, with costs to the appellant to abide the event, and a new trial granted. The conclusion reached by the trial court, that the respondent was financially unable to comply with the requirements of the fire district for an extension of the fire hydrant supply, is not supported by evidence of a satisfactory character. The conclusion that the demand was improper in requiring the installation of four hydrants at locations outside the fire district was erroneous. Even if the evidence established such location of the said four hydrants — and the weight of evidence does not seem to point to that result — it was the duty of the court to mould the writ “ according to the just rights of all the parties.” (People ex rel. Keene v. Supervisors, 142 N. Y. 271, at p. 278.) We are of the further opinion that the respondent may not demand the payment of the alleged debt as a condition to the issuance of the mandamus order. The debt was disputed, and the creditor has its common-law remedy. We are also of opinion that conditions obtaining at the time of the retrial, herein directed, shall be the guide for the relief sought, and not conditions as they existed on the date of the demand in March, 1932. Findings of fact numbered 5, 6, 7, 8, 9, 10, 12, 13 and 14 are reversed. Lazansky, P. J., Young, Kapper, Carswell and Davis, JJ., concur. [146 Misc. 486.]

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240 A.D. 1005, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commissioners-v-northport-water-works-co-nyappdiv-1933.

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