New York University v. . American Book Co.

Plaintiff is the owner of a large building in the city of New York which it leased to the defendant for a term of years. The lease contained no provision with reference to the payment of taxes that might be imposed upon the property and, therefore, the burden of their payment remained on the landlord. The defendant during its occupancy of the premises used large quantities of water which was furnished to it by the city and measured through a meter. The defendant failed to pay for the water consumed by it, whereupon the plaintiff paid the city's claim and has brought this action to recover the amount paid.

The city of New York under the charter (§ 473) is authorized to adopt either of two distinct methods of compensating or reimbursing itself for furnishing water to its inhabitants. The first is by the exercise of the power of taxation; the second, by sale. By the section cited the board of aldermen is authorized to establish a uniform scale of rates and charges for supplying water to different classes of buildings in the city with reference to their dimensions, value, exposure, use, etc. The rates so imposed must be paid regardless of the quantity of water used, or whether any water is used. Such a rate is a tax (Remsen v. Wheeler, 105 N.Y. 573; Matter of Trustees ofUnion College, 129 id. 308), and the obligation to pay it is created by the exercise of the taxing power of the local authorities. By the same section it is also provided that no charge shall be made against any building in which a water meter shall have been placed as provided by the charter. By section 475 the commissioner of water supply is authorized to place meters in certain classes of buildings and the charge made depends solely upon the quantity of water used. In this class of cases there is merely a voluntary purchase by the consumer from the city of such quantity of water as he chooses to buy (Silkman v. Bd. ofWater Commissioners, 152 N.Y. 327), and the obligation to pay therefor must primarily rest upon him who buys and consumes the article. As the sale by the city is necessarily on credit, as security for the payment of the debt a lien is imposed on the property itself for any unpaid charge. The plaintiff's property being thus pledged for the security of the defendant's debt, the plaintiff occupied the position of a surety, and on payment of the city's claim was subrogated to its rights against the defendant.

The order appealed from should be affirmed, with costs, and the question certified answered in the affirmative.

CULLEN, Ch. J., EDWARD T. BARTLETT, VANN, WERNER, WILLARD BARTLETT, HISCOCK and CHASE, JJ., concur.

Order affirmed.