#### The Marlborough Water Works Company, Respondent, *v.*The Village of Marlborough, Appellant.

Third Department,

July 1, 1914.

Municipal corporation — liability under contract for water furnished, for fire protection — evidence establishing implied contract.

Action by a water company against a village to recover for water used for the purpose of providing fire protection. Evidence examined, and held, sufficient to establish an implied contract for the payment of the amount claimed, which was conceded to have been the amount paid by the defendant under previous contracts.

*160Appeal by the defendant, The Village of Marlborough, from a judgment of the County Court of Ulster county, entered in the office of the clerk of said county on the 20th day of January, 1914, upon the decision of the court, the issues having-been withdrawn from the jury by stipulation.

*Alexander Johnston,*for the appellant.

*A. D. & A. W. Lent [Andrew Wright Lent*of counsel], for the respondent.

Woodward, J.:

The complaint alleges that the plaintiff is a domestic water company, and that the defendant is a municipal corporation, and that heretofore and from and including the first day of April, 1912, to and including the first day of October, 1912, the defendant,- the Village of Marlborough, used and occupied, for the purpose of providing fire protection for the inhabitants of said village and the property within the limits thereof, the fire hydrants which form a part of the plaintiff’s said water works plant and water system within said village, and did agree to and with the plaintiff to pay therefor, at the rate of twenty dollars per year for each hydrant, payable and due in semi-annual installments of ten dollars, each hydrant; and that the said rate of ten dollars per hydrant for a period of six months is the reasonable value of such use, and that by reason of the said facts, the defendant became indebted to the plaintiff in the sum of Three Hundred Forty Dollars, the number of such hydrants so used and occupied by the defendant as aforesaid being thirty-four. ”

The answer was a general denial of the material allegations of the complaint, and the evidence on the trial was to the effect that the defendant had in former years rented these hydrants at the rate of twenty dollars per year; that the plaintiff had demanded an increase in the rate, and that a proposition submitted to the taxpayers for an appropriation for such increase had been defeated; that the plaintiff had been notified of the result of such submission, but without any express notice of an intention to cease using the hydrants; *161that a fire occurred in the village, and that the local fire company, an incorporated association, which had been in service for many years and which was the only organization for fighting fires, made use of the hydrants, and that the plaintiff subsequently presented its bill for the payment of the six months’ rentals.

Under the provisions of section 220 of the Village Law (Consol. Laws, chap. 64; Laws of 1909, chap. 64) the defendant was authorized to contract (for it is conceded that the defendant’s board of trustees had the powers of water commissioners) with a corporation for supplying water to the village for extinguishing fires or for other public purposes; *“*but such contract shall not be made for a longer period than five years, nor at an expense for each fiscal year exceeding two and a half mills on every dollar of the taxable property of the village as appears on the last preceding village assessment-roll, unless authorized at a village election. ” There is no allegation that the amount required for the payment of this bill, or for the amount of the bill for the year at the same rate, would be in excess of the amount authorized to be raised without a vote of the taxpayers, and we are of the opinion that the facts disclosed warranted a holding that there was an implied contract for the payment of the amount claimed, which is conceded to have been the amount paid on previous contracts. The case comes within the principles involved in *Port Jervis Water Company*v. *Village of Port Jervis*(151 N. Y. 111), and there appears no good reason why the claim should not be paid.

The judgment appealed from should be affirmed, with costs.

Judgment unanimously affirmed, with costs.