Nicoll v. Sands — 39 N.Y. St. Rep. 16

Majority

p. 16

William Nicoll, App’lt, v. Charles G. Sands et al., Resp’ts.

(Supreme Court, General Term, Second Department,

Filed May 11, 1891.)

Headnote

Contract—Water companies—Construction op.

Chapter 369, § 5, Laws of 1889, provides, in regard to water companies, • “ that it shall be the duty of such corporations * * * to contract with the authorities * * * of any town or village through which the conduits or mains of such corporations may pass * * * to supply any of such inhabitants or authorities with pure and wholesome water.” Under this law a water company made a contract with the authorities of the town of Islip to lay its street pipes. In the company’s petition for the same, it says “for a privilege to supply the inhabitants and authorities with pure and wholesome water,” but nowhere in the contract was this expressly provided for; but" it contained a provision that the company should erect and operate two pumps of appropriate size, each having a capacity of pumping 1,000,000 gallons in every twenty-four hours. Meld, that the contract should be construed as one to furnish water to the town, and not simply one to erect water works.

Appeal by plaintiff from judgment of special term, Suffolk county.

The opinion of Hon. Edgar M. Cullen at special term, referred to in the opinion of Pratt, J., below, is as follows:

“Although this contract-between the town and water company is inartificially drawn, I am clear after a careful study of its provisions that it is to be construed as a contract to furnish a supply of water, not as one for the erection of works merely. There are many provisions which show that it was contemplated that the company should furnish the water, but there is one that in my opinion imperatively makes it the duty of the company so to do:

‘ Pumps. There shall be erected and operated two pumps of standard manufacture of appropriate size, each having a capacity of pumping 1,000,000 of gallons in every twenty-four hours.’ This agreement to operate the pumps is an agreement to deliver 2,000,000 of gallons every twenty-four hours. That the agreement does not provide for the delivery of water for other purposes than fire does not render it invalid. The statute authorizes the town authorities to contract for other purposes, but it is not oblig

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atory on the town so to do. They may contract for any or all the purposes prescribed in the statute. The other questions raised were disposed of on the trial.

“ Judgment for the defendants, with costs.”

Joseph Wood (George A. Black, of counsel), for app’lt; Timothy M. Griffing, for resp’t, Great South Bay Water Company; Wilmot N. Smith, for resp’ts Brown and L’Hommedieu; Herbert W. Smith, for resp’t Smith; Harry G. Clock, for resp’t Jones.

—We concur in the views of the learned trial judge who at trial term substantially held that notwithstanding all inaccuracies the agreement in question, taken as a whole, indicated the purposes of the contracting parties, namely, to supply water to the town in specified quantities through pipes and other means to be provided by the company for the lawful use mentioned in the statute under which the company was organized.

It has been found that the agreement was made in good faith ; in other words, that there was no fraud in the transaction. We think this conclusion was clearly sustained by the evidence. ■ Hot only so, but that a finding of fraud would have been against the clear weight of evidence. The terms of the agreement were all agreed upon before the question of commissioners’ compensation was mentioned.

Under these circumstances it becomes quite unnecessary to decide the question of the legality of the rate of compensation which was ultimately agreed on. It is obvious that the officers in negotiating the terms of the agreement could not have been influenced by the matter of their fees.

We find no other question which seems to require attention. We therefore affirm the judgment, with costs.

Barnard, P. J., and Dykman, J., concur.