#### The People of the State of New York ex rel. Elizabeth McAuliffe, Respondent, v. The City of New York and Others, Appellants.

Second Department,

December 30, 1908.

Municipal corporation — water rates in city of New York — defective meter.

As the charter of the city of New York provides that persons taking water under the meter system shall be charged only for “the quantity of water actually used as shown by said meters,” no charge whatever can be made, where, by the neglect of the city, a meter became out of order and failed to register.

Even though water was actually used during the time the meter was inoperative, there can be no charge based on an average computed from subsequent consumption.

Appeal by the defendants, The City of New York and others, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 24th day of July, 1908, granting the relator’s application for a peremptory writ of mandamus.

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

*Alvan R.*Johnson, for the respondent.

Hooker, J.:

Relator, the owner of premises in the city of New York, used the city water and paid for it according to the indications of a water meter. Between September 15, 1906, and December 10, 1906, the meter did not' register any water at all, although water was supplied to the premises. On the latter day the meter was taken out and repaired, and on December 17, 1906, was restored, adequately repaired. From December 17, 1906, until April 5, 1907, the meter was found to have registered 49,700 cubic feet of water. The water registrar averaged the consumption of water between the 17th day of December, 1906, and the 5th day of April, 1907, and has charged the relator at that rate between the 15th of September, *5521906, and the 17th of December, 1906. The order from which this appeal is taken directs the commissioner of the department of water supply, gas and electricity forthwith to cancel and strike from the books of said city and his department the charge of forty-two dollars and forty-one cents, made to cover the latter period. It is undisputed that the relator consumed water during that time, and if this order is affirmed it seems at least possible that the owner of the premises may succeed in resisting any attempt to compel payment therefor. However, inasmuch as the provisions of the charter of the city seem to cover the exact case, it must be disposed of thereunder. Sections 473 and following of the charter relate to the water rents and to the measurement of water by meters. At the option of the consumer, he may pay either according to a flat rate, which depends principally upon the frontage and number of stories of the buildings upon the premises, or ten cents per 100 cubic feet, which a meter shows is actually consumed. In this case the meter plan"was adopted. Section 473 of the charter* provides 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 tosed as shown by said*meters.” The records show that the city knew that the meter in the relator’s premises was not recording the water which passed through it, and instead of compelling the immediate repair of the meter, by turning off the water or otherwise, permitted the condition to exist. The city also knew the provisions of the charter that, after a meter was installed, the charge could be determined only by the quantity of water actually used, as shown by the meter, and it should have been apparent, therefore, that no charge could be made against the premises except as indicated by the revolutions of the mechanism of the meter. The neglect of the officials of the city has perhaps given the relator something for nothing. But no one can tell now how much" water was actually used during the period of the meter’s non-operation ; it is the plain mandate of the charter that no charge can be made except for water actually used as shown by the meter. If the meter showed nothing, the charter *553seems to allow no charge. The remedy should have been applied at the time the city first discovered the failure of the meter to register, instead of waiting a considerable period and then attempting to make the owner pay an amount which is no better than an estimate and which may be too much or too little.

The order should, therefore, be affirmed.

Woodward, Jenks, Rich and Miller, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.

*

See Laws of 1901, chap. 466, § 473, as amd. by Laws of 1902, chap. 509, and Laws of 1904, chap. 600. Since amd, by Laws of 1908, chap. 382.— [Rep.