#### August Swanberg, Respondent, *v.*The City of New York and Others, Appellants.

Second Department,

January 24, 1908.

Municipal corporation — water meters in city of New York — section 475 of charter constitutional — payment of water rates not contract.

Section 475 oltlie charter Of the city of Mew York, which authorizes the commissioners of the water supply, in their discretion, to place m.eters on the premises of consumers at their expense, is not unconstitutional as taking private property without due process of law. '

Although a consumer has paid water rent for the current year under section 473 of the charter of the city of Mew York, which authorizes a scale of prices based on a classification of the building, etc., it does not constitute an absolute contract by .the municipality to deliver water for the year at that rate, nor prevent the installment of a meter pursuant to section 475 of the charter.

Appeal by the defendants, The City of New York and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 2d day of August, 1907, upon the decision of . the court rendered after, a trial at the Kings County Special Term overruling the defendants’ demurrer to the complaint.

*James D. Bell [D. D.*Whitney, Jr., and *Francis K. Pendleton*with him on the brief], for the appellants.

*Edmund*B. *Bar*num, for the respondent.

*775Woodward, J.:

This action was brought to restrain the defendants from placing a water meter on the plaintiff’s premises, No. 4123 Third avenue, Brooklyn. The plaintiff is the owner of the fee of the premises, and the first floor is used as a liquor store, the upper floors being used as a dwelling. In September, 1906, the defendant notified the plaintiff that he must put in a water meter for the entire premises at his own expense, failing to do which the city would put in the meter, charging the expense to him. The plaintiff failed or refused to put in this meter, and the city having threatened to put in the same this action was brought and a temporary in junction was granted. The defendants demurred to the complaint and from the interlocutory judgment the defendants appeal.

The learned court at Special Term' did not indicate the grounds for its action, but upon appeal it is urged in behalf of the respondent that section 475 of the Greater New York charter (Laws of 1901, chap. 466) which authorizes the placing of meters upon the premises of the plaintiff and others at the discretion of the commissioner of water supply, gas and electricity is unconstitutional and void, as authorizing the taxing of property for private purposes without due process of law. We think the proposition is entirely untenable. While it is true that the city of New York in delivering water to private individuals acts in a sense as a private corporation, yet the duty and obligation of the municipality to afford fire protection and to safeguard the public health through a pure and wholesome supply of water, makes the maintenance of the water system more of the nature of a duty owing by a public or municipal corporation, and to say that it is not within the province of the State Legislature in authorizing the city of New York to construct and maintain a water plant, to provide for placing meters upon the. premises of those who are to use the water, on the theory that this is a taking of the property of the individual without due process of law, is carrying constitutional limitations to the limit of absurdity. Section 473 of the charter (as amd. by Laws of 1904, chap. 600) provides that the board of aldermen shall provide a uniform scale of rents and charges for supplying water, based upon different classifications of buildings, the uses to which the water is to be put,'etc., which such rents and charges are to become a lien upon the premises fronting upon the *776streets or highways upon which .the buildings are located, but it is specially provided that “ no charge whatever shall, be made against any building in which a water meter may have been or shall be placed as provided in this act.. In- all Such cases * * the charge for water shall be determined only by the quantity of water actually used as shown by said meters.”

It is obvious that any schedule of rates based upon classification of buildings, purposes for which the water is to be used, etc., would be open to abuse .on the part of water users in many instances, and to obviate this, the'charter in section 475 provides that the commissioner of water supply is authorized, in his discretion, to cause waterméters * * * to be placed in all stores, workshops, hotels, manufactories, office buildings, public edifices, at wharves, ferry-houses, stables and in all places in which water is furnished for business consumption,” etc. The plaintiff' had paid his water rent for the current year when the notice was given, but this did not amount to an absolute contract to' deliver the water for the year under that rate; the same statute which provided for the rate based-on buildings, etc., provided that the commissioner. in his discretion' might make a change, and' -such á change was obviously proper in.the case of the plaintiff. He was not obliged to take water, though lie would be subject to rent whether he did or not under the provisions of section 473, but if he did take water he took it subject to the conditions prescribed in the charter, and we know of no constitutional limitation on such a transaction. The case of *Hill*v. *Thompson*(50 N. Y. Super. Ct. [18 J. & S.] 165, 172) appears to. have disposed of the most of the objections suggested, and we are of opinion that the interlocutory jitdgment in this case should be reversed and the demurrer should be sustained.

Gaynor, Rich and Miller, JJ., concurred; Jenks, J., concurred in result on the authority of *Hill*v. *Thompson*(18 J. & S. 165; approved, *Silkman*v. *Water*Commissioners, 152 N. Y. 331) and *State ex rel. Hallauer*v. *Gosnell*(116 Wis. 606; 61 L. R. A. 33, and cases cited).