Coykendall v. Harrison — 206 N.Y. 657

Majority

p. 657

Samuel D. Coykendall, Respondent, v. William R. Harrison et al., Constituting the Board of Water Commissioners of the City of Kingston, Appellants, and The City of Kingston, Respondent.

(Argued June 5, 1912;

decided June 29, 1912.)

Headnote

Coykendall v. Harrison, 150 App. Div. 46 , affirmed.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered May 15, 1912, which affirmed an order of Special Term granting an injunction to restrain the defendants from carrying out a contract for the purchase of filters and purifying devices.

The following questions were certified:

“ 1. Did the purchase and installation of the filters, coagulating and sterilizing devices as contemplated and specified in the contract set forth in the complaint constitute ordinary maintenance of the water system of the city of Kingston so that the hoard of water commissioners of such city had the power to make such contract without the assent of the common council ?

“ 2. If such contract did not contemplate ordinary maintenance or repair, did the water board have the right to enter into the same without the assent of the common council % ”

G. D. B. Hasbrouck and Arthur C. Connolly for appellants.

A. T. Clearwater for plaintiff, respondent.

James Jenkins for defendant, respondent.

Order affirmed, with costs; second question certified answered in the negative; first question not answered because it presents a question of fact and not of law; no opinion.

Concur: Cullen, Ch. J., Willard Bartlett, Hiscocic and Chase, JJ.; Cray, Werner and Collin, JJ., vote for dismissal of appeal.