Town of Mamaroneck v. New York Interurban Water Co.

126 Misc. 382, 212 N.Y.S. 639, 1925 N.Y. Misc. LEXIS 1145
CourtNew York Supreme Court
DecidedAugust 6, 1925
StatusPublished
Cited by4 cases

This text of 126 Misc. 382 (Town of Mamaroneck v. New York Interurban Water Co.) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Town of Mamaroneck v. New York Interurban Water Co., 126 Misc. 382, 212 N.Y.S. 639, 1925 N.Y. Misc. LEXIS 1145 (N.Y. Super. Ct. 1925).

Opinion

George H. Taylor, Jr., J.

This action is brought by the plaintiffs, municipalities and individuals therein resident, who are consumers of water, against the defendant, a corporation supplying them with that commodity, to procure a judgment (a) that certain rules and regulations and an increased schedule of water rates and charges effective March 1, 1924, and by the defendant promulgated prior thereto, are unreasonable, unlawful and oppressive, and (b) permanently enjoining the defendant from collecting or attempting to collect those rates for water, from plaintiffs and all others similarly situated. Such other relief as may be just and equitable is also asked.

The increased rates.

On its face the increase appears staggering; for on the basis of water actually consumed and paid for in the district involved, the company received $133,295.25 in 1923 (see Exhibits 9, 26 and C); if the increase had obtained in that year the defendant would have received $238,435.17, or nearly seventy-nine per cent in [386]*386excess of the rates then actually obtaining. (See plaintiffs’ Exhibit 9 and defendant’s Exhibits E and YY as corrected by JJJ.) It also appears that the new rates are-much greater than in communities similarly situated. These facts suggest the possibility of unreasonableness.

The previous rates.

Rates for water were previously fixed by the defendant at a time when the city of Mount Vernon was still in the defendant’s system, and were much less than those here involved, and Were made effective September 1, 1919; said rates in a certain judgment of March 1, 1920, in an action brought by the defendant against the city of Mount Vernon were in effect declared fair and reasonable in so far as the rates or charges were made equal to all consumers of the same class without distinction as to the municipalities in which they resided or distance of said residences of the municipalities from the reservoirs of the water company; but said judgment also declared, in effect, that the company was then receiving about $30,000 annually in excess of seven per cent return on the court’s then declared valuation of the defendant’s then property in the public service, and that to the extent indicated by such excess the defendant’s rates of September 1, 1919, were not fair and reasonable. (N. Y. Interurban Water Co. v. City of Mount Vernon, 110 Misc. 281.) Subsequently, in 1920, the defendant readjusted its rates to meet, as it claimed, the findings of the court in that case (although plaintiffs dispute the fact). This readjustment, according to the plaintiffs’ contention, brought the defendant considerably more than the fair return indicated by the judgment; the plaintiffs ask here that the defendant should be compelled inter all to refund such excess to the consumers.

The defendant and its statutory obligation.

The defendant is incorporated under the Transportation Corporations Law, under section 81 of which the defendant is obligated to supply to the plaintiffs and others similarly situated “ pure and wholesome water at reasonable rates and cost * * The statute says so and the authorities are uniform to that effect; indeed, it is asserted in some of the cases that the duty thereby imposed upon the corporation is a positive and absolute one. (Matter of Town of Mamaroneck v. N. Y., etc., Water Co., 203 App. Div. 122; affd., 235 N. Y. 563; City of New York v. Jamaica Water Supply Co., 181 App. Div. 49, 52; affd., 226 N. Y. 572; People ex rel. City of N. Y. v. Queens County Water Co., 232 id. 277, 282.) That the rates charged shall be reasonable is legally a part of its franchise. (See the opinion of Jenks, J., in City of Mount [387]*387Vernon v. New York Interurban W. Co., 115 App. Div. 658.) So much for the obligation of the defendant to its consumers.

The plaintiffs’ right to seek injunctive relief.

That if the plaintiffs' rights have been invaded and the statute violated as alleged in the complaint, the remedy by injunction as here sought is a remedy available to the plaintiffs and those similarly situated, admits of no doubt. (Whitmore v. New York Interurban Water Co., 158 App. Div. 178.) The other remedy available, although not here pursued, is mandamus. (People ex rel. Brush v. N. Y. Suburban Water Co., 38 App. Div. 413.) The lawful right of any private consumer to insist upon a supply of water at reasonable rates is so clear that it exists even against the agreement of the municipality in which he resides, made with the company, purporting to establish a minimum rate. (City of Mount Vernon v. New York Interurban W. Co., 115 App. Div. 658.)

The complaint.

The complaint in this case attacks the instant increased rates originally sought to be enforced as of March 1, 1924, as unreasonable, and also asserts, in effect, that by reason of defendant’s certain representations to this court, to the Appellate Division and to the Court of Appeals, in an action brought by some of these plaintiffs, among others, to restrain the then proposed sale by the defendant to the city of Mount Vernon, where the bulk of its customers and the greater volume of its business of supplying water then were, of part of the then plant of the defendant which was located in that city, thereby severing from the defendant’s then entire plant such portion thereof and from the defendant the great portion of its business and revenues, the court was induced to refuse to restrain such sale. (See Town of Mamaroneck v. N. Y. Interurban W. Co. [opinion of Tompkins, J.], affd., 198 App. Div. 396; 233 N. Y. 666.) The plaintiffs claim that by reason of its said conduct and representations in the litigation referred to, and by the findings and judgment therein, the defendant is estopped and precluded from increasing the rates as they existed prior to the increase here complained of; therefore, this litigation presents for determination not only the ordinary question of the reasonableness of rates, but the extraordinary and unusual one relating to such claimed estoppel. I do not agree with defendant’s learned counsel that the action is brought to declare the rates attacked extortionate.” “ Reasonable ” is the statutory word. (Trans. Corp. Law, § 81.) The plaintiffs claim that the rates attacked are unreasonable.

[388]*388 The defendant’s plant and status prior to the sale to Mount Vernon,

Formerly, and prior to about April 1, 1924, this defendant supplied not only the municipalities which are among the plaintiffs here, but also Mount Vernon to which after the injunction suit referred to had terminated, in defendant’s favor, the latter sold for $1,187,500 the aforesaid part of its plant; thereby it lost the privilege and duty of supplying that municipality and its inhabitants with water, and as above indicated, deprived itself of the greater volume of its prior business and incidentally the greater part of its prior revenue, although it had in hand as a result of the sale, the large sum referred to as the purchase price, which was necessarily potent as a producer of revenue. In addition, as the plant had been constructed in such a way as to supply properly the inhabitants of Mount Vernon, which construction included inter all

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Bluebook (online)
126 Misc. 382, 212 N.Y.S. 639, 1925 N.Y. Misc. LEXIS 1145, Counsel Stack Legal Research, https://law.counselstack.com/opinion/town-of-mamaroneck-v-new-york-interurban-water-co-nysupct-1925.