#### In the Matter of the Application of Michael McGrath for Writ of Mandamus against The Green Island Water Company.

*(Supreme Court, General Term, Third Department,*

*Filed February 24, 1890.)*

1. Mandamus.

Defendant may be compelled by *mandamus*to supply water to such persons as will pay the charges and rates therefor.

3. Same—A legal eight thebeto must be shown.

To entitle a party to such writ his legal right must be clear.

3. Same.

Plaintiff contracted with defendant to supply his house with water for one faucet for five years at five dollars a year. He subsequently altered the house and used two faucets and tendered $5.50, alleging that to be the Troy rate for a whole house. *Held,*that the contract governed during its term; that the Troy schedule did not provide for additional faucets at fifty cents each; and the tenier of a bond to pay whatever the court should adjudge was a conditional one and did not give relator a clear present legal light which would entitle him to a *mandamus.*

Appeal by the relator from an order of the special term, denying a peremptory writ of *mandamus*and awarding an alternative writ.

The relator is a resident of Green Island. He at first received water in his house from the company through one faucet under a *705contract with the respondent for five years at five dollars per year. Subsequently he adapted his house for two families and put in another faucet for the other family. Water was thereafter received through both faucets for about one year. The respondent charged him ten dollars for both faucets. The relator tendered §5.50 for the supply for one year, which the respondent refused to accept.

The relator bases his motion upon a contract between the respondent and the village of Green Island to the effect that the rates to be charged by the respondent to consumers should not “exceed the present tariff charged in the city of Troy,” and that such tariff for a whole house like his would not exceed §5.50. The respondent does not deny the contract, or the Troy rates, but claims that they do not apply to a house used for two families, nor supersede the special contract for five years. Upon the disagreement the respondent cut off the relator’s whole supply of water.

*3. A. King,*for app’lt; *B. A. Parmenier,*for resp’t

Lahdoh, J.

Chapter 737, Laws of 1873, as amended by chap. 422, Laws of 1885, under which the Green Island Water Company was incorporated, imposes upon the company the duty to supply the inhabitants of Green Island with pure and wholesome water at reasonable rates.

The contract between the authorities of the village of Green Island and the company for the company to supply the village “ and its inhabitants ” with such water and at rates not to exceed those specified in the schedule forming part of the contract and providing that the rates to consumers shall not exceed the present (1887) tariff charged in the city of Troy, was made for the benefit of consumers, and relator as one of such consumers could avail himself of it, or could make whatever special contract with the company they could agree upon.

Whichever contract the relator adopted he could enforce, and performance being made or tendered upon his part would give him the right to the supply of water in accordance with its terms.

The respondent is a corporation, undertaking in view of its franchises of a public character, and expressly charged with the-duty to perform a certain service to all who pay certain fees or rates therefor, and can, therefore, be compelled by *mandamus*to perform such service. *People*v. *N. Y., L. E. & W. R. R. Co.,*104 N. Y., 58; 5 N. Y. State Rep., 550; *People*v. *N. Y. C. & H. R. R. R. Co.,*28 Hun, 543.

When the character of the service charged upon the corporation is such as it would be competent for the legislature to entrust to municipal corporations and public officers, no reason is perceived why a *mandamus*will not lie at the suit of the party aggrieved in the same manner as it would in like case against such corporations or officers.

The relator must be destitute of any other adequate remedy. Still the courts will be slow to assume that he has any adequate *706remedy or the non-performance of a *quasi*official duty in his behalf, or for the deprivation of one of the necessaries of life.

But his legal right must be clear. In this case the relator is entitled to the writ of peremptory *mandamus*if he has paid or tendered payment of the rates legally due, otherwise not.

It appears that in January, 1888, he made a contract with the respondent for the supply of water from a single faucet at the rate of five dollars per year for five years. His house was then •occupied by one family only. Since then be has adapted it to two families and put in an additional faucet for the second family, .and he now claims the right to the supply for both families at the Troy rate of $5.50 for the whole house, and refuses to pay more. We do not think this position tenable. For the contract exists as to the first faucet at five dollars, and so long as that contract remains it governs as to that There is no provision in the Troy schedule that in such case additional faucets shall be supplied at the rate of fifty cents each. He cannot be permitted to take the benefit of his special contract so long as it most benefits him, and repudiate it when he finds that the Troy schedule would be more beneficial. The relator claims that he has tendered the respondent a bond to pay whatever rates the court may adjudge. But that is not full tender of present performance; it is a conditional tender, and, therefore, does not give a clear present legal right Suppose the county clerk is entitled to one dollar for recording a paper, and the relator should tender fifty cents in money and a bond to pay the balance if the court should so adjudge. It would not be claimed that *mandamus*would lie against the clerk to compel him to record the paper. This case does not differ in principle.

If, before the water had been cut off, the relator had brought his action to restrain the respondent from cutting it off, at the same time offering to pay whatever sum should be found due, such action perhaps would be well brought. The action would have for its object the settlement of a dispute, relief against injury pending the action, and provision for doing what equity requires. Such was *Sickles*v. *Manhattan Gas-Light Co.,*64 How., 33; 66 id., 304. But an application for a peremptory writ of *mandamus*assumes that no material facts are in dispute. Both parties stand upon their legal rights. If the relator is clearly right, he succeeds, otherwise he fails.

Order affirmed, with ten dollars costs.

Learned, P. J., concurs; Mayham, J., takes no part.