#### Rook Hill Sewerage Disposal Corporation, Respondent, v. Town of Thompson, Appellant.

Brink, J.

Appeal from an order denying a motion to dismiss a complaint made pursuant to CPLR 3211 (subd. [a]). In 1960, a Special Sewage District was formed in the Town of Thompson in Sullivan County, New York. Shortly thereafter in the same year, a private sewage disposal corporation was formed, pursuant to the Transportation Corporations Law, to service an area of the town known as Lake Louise Marie, Rock Hill, Sullivan County. This is a Summer housing development, but only a fraction of the area has actually been developed. On October 22, 1960, a resolution was passed by the Town Board, pursuant to section 451 and section 452 of the General Municipal Law of the State of New York, providing for an annual sewerage charge of $60 for each building plot in the foregoing area and consenting to the formation of the private Sewerage Disposal Corporation. On June 15, 1965, following the receipt of the petition, the Town Board passed another resolution which stated that when the prior resolution fixing the annual sewerage charge of $60 was passed, it was the intention of the board that said charge was sewer rent and might be charged and payable when and only if made with respect to building plots connected to and making use of sewerage facilities. The plaintiff contends in this action that the resolution of 3965 was unconstitutional in that it deprived the plaintiff of property without due process of law. *627In the complaint, plaintiff seeks a declaratory judgment that the ordinance is unconstitutional; it also demands judgment that the action of the Town Board on June 15 be stricken from the records and books of the town; that in the event the court finds the action of the defendant to be lawful, a condemnation commission be appointed; that in such event, the town be directed to pay plaintiff the fair value of plaintiff’s property and assets together with revenue from its investment. The defendant contends that plaintiff’s action is barred by the Statute of Limitations under CPLR 217. This section was formerly included in article 78 of the CPA. The four months’ limitation still applies to proceedings under article 78. However, article 78 is not the only means available for the review of the constitutionality of governmental action. Declaratory judgment constitutes an alternative remedy. (8 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 7801.02, subd. [4]; see, also, *Matter of Diocese of Rochester*v. *Planning Bd.,*1 N Y 2d 508.) The present action is governed by CPLR 213 (subd. 1), limiting the action to six years. The action was, therefore, timely commenced. The complaint should have been dismissed on the grounds that it does not state a cause of action. It cannot be said that the resolution of June 15, 1965 deprived the plaintiff of any property or rights. The original resolution of 1960 fixing the annual sewerage rental or charge was illegal and void if it was within the intent of the ordinance to charge property owners not using the sewerage disposal system. Sections 451 and 452 of the General Municipal Law in force in 1960 limit the authority of municipalities including towns to fix sewer rates on the basis of actual use of the sewerage system by property owners. Although section 451 lists several methods of fixing rentals for the use of sewerage systems under paragraph (e) of subdivision 1 and permits a municipal board to fix the charge on any other equitable basis, the statute generally limits the method employed to the use of the sewerage system. This interpretation of the statute has been followed by the State. (12 Op. St. Comp., 1956, p. 480; 10 Op. St. Comp., 1954, p. 150; 9 Op. St. Comp., 1953, p. 320.) The 1965 resolution could not deprive the plaintiff of something which it never legally acquired under the 1960 resolution. The alternative relief cannot be granted under plaintiff’s complaint. Sufficient facts are not alleged to support an action for breach of contract. The plaintiff under no circumstances, can recover on an unlawful agreement. However, on this motion, the plaintiff requested leave to replead in the event the complaint were dismissed. The plaintiff should have an opportunity to plead any other facts which might support a legitimate contract with the defendant if such facts exist. Order reversed, on the law, and motion to dismiss complaint granted, without costs. Gibson, P. J., Herlihy, Aulisi and Staley, Jr., JJ., concur with Brink, J.