Feder v. Rosenthal

Lehman, J.

Between May 24, 1906, and December 11, 1906, the defendants were the owners of a tenement-house in New York city. On the 1st day of November, 1906, they entered into a contract in writing with the plaintiffs whereby they agreed to convey the said premises with full covenants of warranty, free from all incumbrances and free from all violations filed against the said premises in any of the municipal departments of the city of New York. On the 25th day of May, 1906, a notice was served upon the janitor of the defendants, requiring the owners of the premises to install a water meter and stating that, in case of their failure or neglect so to do, the meter would be placed therein by the department and the expense charged to them. The defendants failed to install such a meter, and the department installed one on October 8, 1906. The city plumber rendered a bill to the department between October 8th and November 1, 1906. An inspection of the work was made by the department on November 1, 1906, and the same was certified as properly done. The bill of the city plumber was certified by the water department to the comptroller, with other bills for similar work, on December 13, 1906. It does not appear from the books of the water department when the foregoing charge was entered upon its books.

The premises were conveyed under the above contract of sale to the plaintiffs, with full covenants for conveying and assuring to the plaintiffs the fee simple of said premises on December 11, 1906. The bill for the installation of the water meter was mailed to the premises on January 15, 1907.

Upon these facts the trial justice rendered judgment for the plaintiffs for the sum of $164.79, together with costs. It seems to me that the judgment was erroneous.

It cannot be supported on the ground that the notice to the defendants was a violation within the meaning of the contract. The defendants, before the notice, had certainly committed no violation, because there is no law requiring the owners of all tenement-houses to install meters; for the law simply authorizes the commissioner of water supply, in his discretion, to cause water meters to be installed. Nor could the failure of the owners thereafter to install the meter be considered a violation, because the commissioner of water supply had no authority to order the owner to install the meter, but only authority to cause a water meter to be installed; and the notice was effective, if at all, by virtue of' such authority and as a convenient means of causing the installation. It is to be noted that this notice did not seek to impose a penalty if the meter was not installed, but only stated that the department would, in case of failure, place the meter itself and charge the expense to the owner.

It cannot be supported on the ground that the charge was a lien upon the premises at the time that the premises were conveyed. To constitute a lien or incumbrance within the meaning of a covenant against them, the amount of a charge should be ascertained or determined. Harper v. Dowdney, 113 N. Y. 644. I cannot find upon the agreed statement of facts that this occurred before December 13, 1906. It is true that a bill had been rendered and the work had been certified before that date, but it does not appear that the amount of the bill had been approved. I am of opinion that the amount of the charge must be fixed by some act of the department before it can become a lien or incumbrance, and that no such act is alleged, in the agreed statement of facts, to have been performed before the certification of December 13, 1906.

The judgment should be reversed and the complaint dismissed, with costs to the appellants.

Gildersleeve and Seabuby, JJ., concur.

Judgment reversed and complaint dismissed, with costs to appellants.