Pabst Brewing Co. v. Oakley — 115 A.D. 215

Majority

p. 215

Pabst Brewing Company, Respondent, v. John T. Oakley, as Commissioner of Water Supply, Gas and Electricity of the City of New York, Appellant.

First Department,

November 5, 1906.

Headnote

Municipal corporation — suit in equity to correct water meter readings in city of New York — proof of inaccuracy.

A court of equity will not relieve a consumer of water in the city of New York from paying for the amount registered by his meter when an alleged error in the meter is shown only by mere opinions based upon occasional observations and comparisons with the amount of water used at other periods of the year.

Appeal by the defendant, John T. Oakley, as commissioner of water supply, gas and electricity of the city of Hew York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 2d day of February, 1906, upon the decision of the court rendered after a trial at the Hew York Special Term requiring defendant to correct the records of the department of water supply, gas and electricity of the city of Hew York for the period between May 16, 1904, and October tenth théreafter, so that the same will show that plaintiff used during said period on the premises described in the complaint 441,000 cubic feet of water instead of 859,000 cubic feet of water, as shown by the records, which are in accordance with the registra

p. 216

tion of the meter, arid requiring a corresponding correction in the amount of the indebtedness of the plaintiff to the defendant for the use of water.

Theodore Connoly, for the appellant.

A, S. Gilbert, for the respondent.

The decision in Healy v. City of New York ( 90 App. Div. 170 ) was based itpon sections 473^[1] and 475 of the Greater New York charter (Laws of 1901, chap. 466), which authorize the use of Water meters, and provide, among other things, in substance^ that when meters are “ installed ” “ the charge for water shall be determined only by the quantity of water actually used, as shown by said meters,” and that bills for the use of water shall be made out.for the amount of water consumed as registered by the meter. The evidence in that case tended to show that the meter, which was furnished by the city, and remained in its possession and control for the purpose of inspection and repair, was out of order without fault on the part of the consumer, and registered only about one-fifth of the amount of water used.- The ■ city undertook to estimate and charge the consumer for the excess of water used over the amount registered. We held that, the meter was controlling. The evidence in the case at bar falls far short of establishing beyond question that the amount of water shown by the meter did not pass through it and from the water pipes on the premises . occupied by the plaintiff; The question, therefore,, as to whether a court of equity could in any circumstances grant relief to a consumer against the record of a meter demonstrated or conceded to have been defective is not before us for decision, and 1 think that- no opinion should be expressed thereon.

The plaintiff sought to discredit the meter by evidence consisting of opinions of observers, tending to' show a. comparison of the amount of water used during the period in question, embracing the hot summer months, with the amount registered by the-meter both prior and subsequent thereto. The plaintiff was -using large quantities of water during the entire period. The water was hot shut off

* This section has been since amended by chapter 509 of the Laws of 1903 and chapter 600 of the Laws of 1904.— [Rep,

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at any time. The evidence as to observations only relates to a very small fraction of the time. The observations were only occasional and casual. It is well known that the amount'of water that will pass through a faucet depends not only on the size of the opening and the length of time the water is turned on, but upon the pressure as well. Opinions based upon observations that the employees of a theatre and hotel, including a bar and restaurant, were not using more water than during a preceding or subsequent month, are of little value and afford no basis upon which a court of equity may command that the record of the meter be corrected to show the .use of only the same amount of water as was used during a prior or succeeding period, or otherwise. This is the substance of the evidence offered by the plaintiff. Since he failed to offer any evidence upon which the court could grant equitable relief the complaint should have been dismissed. Public policy requires that the courts should sustain the rule prescribed by the statute as the only criterion for ascertaining the amount of water used, at least until an extraordinary case of extreme hardship is presented where it is conceded or demonstrated beyond question that through fraud, mistake or by accident the record made by the meter is erroneous. If the public' servants were given discretion to modify the readings of meters, the door to corruption would be opened ; and if the courts should take jurisdiction on such evidence' as that here presented, there would be a flood of this class of litigation which would interfere with,the collection of the public revenue, take up the time of the courts and of other public servants, and only prove abortive in the end, for it is manifest that if the meter were defective it would be impossible to prove actually or approximately the amount of water used. The protection against defective or inaccurate meters must be found in discovering and reporting when they appear to be out of order, and requiring prompt, efficient supervision by the public authorities.

It follows that the judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.

Patterson, Ingraham, Clarke and Houghton, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event.