Opn. No.

Hon. David J. O'Connor Village Attorney, Weedsport

This is in reply to your letter received by this office on June 16, 1979 in which you seek this office's opinion as to the following questions:

"1. Is a municipal water contract between two municipalities null and void if it does not contain a provision pertaining to the length of time the contract is to run?

2. If it is not void, how long is it valid?"

It is the opinion of this office that an ongoing contract indefinite as to time is not void. Authorities agree such a contract is usually either terminable at will or with notice within a reasonable time, but is binding as to services already rendered. 1 Corbin on Contracts, § 96, p 419; 1 Williston, 3rd Ed., § 38, p 117; Muzak Corp v Hotel TaftCorp., 1 N.Y.2d 42 (1956); Hills v Melenbacher, 23 A.D.2d 803 (1965);Mitler v Friedberg, 32 Misc.2d 78, 85, 222 N.Y.S.2d 480 (1961).

"It is generally agreed that where a duration may be fairly and reasonably supplied by implication a contract is not terminable at will", Haines v City of New York, 41 N.Y.2d 769, 396 N.Y.S.2d 155,364 N.E.2d 820 (1977). Such an implication might come from the wording, custom, intent of the parties, and circumstances surrounding the contract (reliance, hardship, etc.). 1 Williston, 3rd Ed., § 38, pp 115-7; 10 N Y Jur Contracts, § 261, p 193, § 262, p 195, § 412, p 426;Haines; Muzak; Colony Liquor Distris. v Daniels Distillery, 22 A.D.2d 247.

Contracts with no specific duration will not be implied to be perpetual unless clearly shown. Such a clause is not favored (1 Williston, 3rdEd., § 38, p 113; Mitler; Haines) and in any event is beyond the powers of the municipalities because water contracts are limited to a maximum of 40 years. General Municipal Law, § 118-a; Village Law, §§ 11-1100, 11-1124; cf. Town of Highlands v Weyant,38 A.D.2d 256, 329 N.Y.S.2d 58 (1972).

The answers to your questions, therefore, are:

1. A municipal water contract between two municipalities is not void due to absence of a provision as to length of time.

2. For a reasonable period of time, or that implied under all the circumstances but not more than a period of 40 years.