Majority
p. 81Theodore H. Silkman, App’lt, v. The Board of Water Commissioners of the City of Yonkers, Resp’t. (Supreme Court, General Term, Second Department, Filed July 28, 1893.)
Headnote
Yonkers—Water rates not a tax.The water rates established by respondent pursuant to chap. 36, Laws 1873, for the use of water, are not taxes, and no notice is necessary before imposing the same.
Appeal from judgment dismissing the complaint on the merits.
Action to restrain defendant from cutting off the supply of water from plaintiff’s premises in the city of Yonkers for failure to pay a water rent due, and to recover certain amounts paid by plaintiff for water' since October 1, 1887, in excess of fifteen cents per 100 cubic feet, which plaintiff claims to be the only charge defendant can legally make.
Defendant is a corporation organized by chap. 36, Laws 1873, which requires the commissioners to establish a scale of rents to be called water rents. Such rates have been fixed and the surplus of earnings, if any, in each year are turned over to the city treasurer and used to pay the interest on the water bonds and to reduce the tax levied to form a sinking fund for their redemption.
Plaintiff obtained the water from defendant upon a requisition filed by him, in which he asked for water, and in which he agreed that it should be supplied under the rates, and subject to the rules, regulations and ordinances of defendant, and a meter was placed on his premises. In each quarter from Sept. 1, 1887, to 1890, bills in accordance with such rules and regulations were presented to plaintiff and paid by him under protest, and in September, 1890, a bill was presented, which he refused to pay, and defendant threatened to cut the water off, whereupon this suit was brought.
Plaintiff claims that these water rates are in the nature of taxes, and that notice must be given before they can be levied, and that the levy must be of equal amount on each piece of property; while defendant claims that they are rents, and the right to fix them was in its discretion.
William P. Fiero, for app’lt; Joseph H. Daly, for resp’t.
The water rates are not taxes. The act under which the defendants were incorporated, chap. 36, Laws of 1873, directs the commissioners to establish a scale of rents payable in advance or upon a stated term of credit, to be called water rents. The board were authorized to cut off the supply of water if these rents were not paid. There is no basis for terming these water rents a tax. Provident Inst. for Savings v. Mayor, 113 U. S., 506 ; Treadwell v. Van Schaick, 30 Barb., 444 .
The commissioners did fix the rates, and it was supplied and paid for, but under a protest on account of his receiving no notice of the levying of a tax on the land. There is no lien on the
p. 82
land for water furnished and not paid for. There will be a tax on land for a deficiency to meet the purpose of the act, and when this tax is'laid it-will be upon notice.
The judgment should be affirmed, with costs.
Dykman and Pratt, JJ., concur.