Town of Mamaroneck v. Baker — 233 N.Y. 666

Majority

p. 666

Town of Mamaroneck et al., Appellants, v. William B. Baker et al., Constituting the Board of Fire Commissioners of the Town of Pelham, First Fire District, Appellants, and New York Inter-Urban Water Company et al., Respondents, Impleaded with Others.

Headnote

Water-works companies — ultra vires —• action by municipalities served with water to restrain sale of part of plant to another municipality.

Town of Mamaroneck v. N. Y. Interurban Water Co,, 198 App. Div. 396 , affirmed.

(Argued May 9, 1922;

decided May 31, 1922.)

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial

p. 667

department, entered November 2, 1921, unanimously affirming a judgment in favor of defendants, respondents, entered upon a decision of the court on trial at Special Term. The action was brought by the plaintiffs to restrain the execution and consummation of a contract providing for the sale by the defendant New York InterUrban Water Company to the defendant city of Mount Vernon of so much of its water distribution system as lies within the corporate limits of the city. The other defendants are municipal corporations now being served with water by the Inter-Urban Company. The gravamen of the complaint is in substance that the proposed sale, if consummated, would seriously impair the ability of the water company to discharge its public duty to the plaintiffs and other defendant municipalities now served by it with water, and incapacitate it to supply them with water at fair and reasonable cost and perform existing contracts entered into for that purpose; that under existing statutes, the city of Mount Vernon has no right or power to purchase a part only of the property of the water company, but must take it all or none in order that the communities now served may continue to be served with water from the same source; that the contract cannot be consummated unless and until it has been approved by the conservation commission; and that consummation of the contract would constitute an unlawful invasion of the property rights of the plaintiffs.

J. Henry Esser, for plaintiffs, appellants.

Benjamin L. Fairchild for defendants, appellants.

' Arthur M. Johnson for Inter-Urban Water Company, defendant, respondent.

Clinton T. Taylor, Corporation Counsel, for city of Mount Vernon, defendant, respondent.

Judgment affirmed, with costs; no opinion.

Concur: Hiscock, Ch. J., Hogan, Cardozq, Pound, McLaughlin, Crane and Andrews, JJ.