Kelly v. Miller ( 1912 )

Cohalan, J.

Plaintiff, a taxpayer, brings this action under section 301 of the Laws of 1892 against the defendant Miller, as president of the borough of the Bronx, and three other defendants to restrain them from allowing a connection, of the sewer in Martha avenue, in the city of Yonkers, to be made with a sewer in the borough of the Bronx. The facts are undisputed and only questions of law are at issue. The plaintiff contends that the borough president was without power to permit a connection which would allow the residents of the city of Yonkers to use a sewer of the borough of the Bronx; that in issuing such a permit his action was illegal and void, and that this court should issue an injunction restraining the use of the connection by the defendants Gorton, Lynch and Larkin. It appears that the permit was granted to construct the line of sewer at the expense of the petitioners and Jwithout expense to the city of Mew York, and upon condition that the connections might be discontinued by the authorities of the city. The evidence for the city showed that the permit was a temporary one and inured greatly to the benefit of the'city of Mew York. It appears that the entire neighborhood at the point of connection slopes and drains towards the Bronx river, and that the drain in Martha avenue, from Two Hundred and Forty-first ¡street to Two Hundred and Forty-second street, and in Two Hundred and Forty-second street from Martha avenue to Katonah avenue, was included in the general plan for 'the sewers of that "district. The necessity for this plan is shown from the figures giving the various elevations of the street intersections. The elevation of the surface of East Two Hundred and Forty-second street, at the north line of the city of Mew York, is twenty-one feet lower than East Two Hundred and Fifty-second street at ¡Mount Vernon avenue. In order to obtain sewerage of Two Hundred and Forty-first street, from Katonah avenue to the city line, it would have been necessary for the city, at its own expense, to have obtained permission from the city of Yonkers and to have constructed the sewer in. the remainder of Two Hundred and Forty-second street to Martha avenue, and thence southerly in Martha avenue to Two Hundred and Forty-second street. The request by the defendants Gorton, Lynch and Larkin to the borough president for permission to construct, at'their own expense, these lines of sewers furnished the opportunity to the city to obtain this construction without expense and at the same time to provide a sewer which the city itself would otherwise have been compelled to build at a considerable expenditure of money. In view of this situation, and the additional fact that the outlet sewer as built is amply sufficient to take care of the small additional sewerage that may .come from the small territory connected with it in the adjoining municipality, there can be no reasonable objection to the permit as granted by the borough president. There has been, no waste of the city’s funds or of the city’s property. Moreover, sewer outlets beyond the city limits are not necessarily illegal. Dillon Mun. Corp., § 776. The governing power with respect to the construction' of a drainage and sewerage system and the maintenance of sewers and drains is lodged in the borough president. Greater N. Y. charter, § 383, subd. 9. In addition to the express powers therein granted, he has implied powers to provide for sewer outlets, even outside of the corporate limits of his borough, and he may exercise this authority beyond the corporate limits for a public purpose. Matter of Mayor, 99 N. Y. 584; Dillon Mun. Corp., § 1148. In view of the fact that no waste has been shown and that the borough president in granting the permit for a temporary sewer acted within his lawful powers, I am of opinion that the complaint should be dismissed, without costs.

Complaint dismissed, without costs.