183 N.Y. 330 | NY | 1906
The Appellate Division in allowing this appeal certified two questions, as follows: (1) Does the complaint in this action state a cause of action; and (2) is the affirmative matter set up in the answer sufficient in law upon the face thereof to constitute a defense in this action? Neither the Special Term nor the Appellate Division handed down an opinion, and we are remitted to the record, as is frequently the case in appeals from all the departments, without the views of the Supreme Court.
The plaintiff, a resident of the village of Pelham Manor, Westchester county, and a customer of the defendant water company furnishing the village with its supply of water, seeks in this action a permanent injunction restraining the company from enforcing collection of a water rate in excess of the amount fixed by the existing contract with the village.
In October, 1892, the New York Westchester Water Company supplied private consumers under a written contract, wherein it agreed with present and prospective private consumers to supply water to them at a rate per annum not to exceed $22.50 for each private house and $5.00 for each private barn; this contract extended to November first, 1897.
On or about October 22d 1894, a franchise was granted to the New York City District Water Supply Company by the village, authorizing the company to lay its mains for the purpose of supplying water; that at the same time a contract under seal was entered into between the village and the company, which contained, among other provisions, a covenant that for and during the term of ten years, from October 22d 1894, and an extension for twenty years thereafter, if voted by the *332
village pursuant to law, it would supply private consumers and corporations in the village with pure and wholesome water at not exceeding the rates then charged by the New York Westchester Water Company. It further appears that on May 31st, 1904, the village voted to extend this contract for thirty years from its original date, October 22d 1894, to October 22d 1924, as permitted by the Transportation Corporations Law, section
Some time prior to February 11th, 1904, the defendant New Rochelle Water Company became the assignee and successor of the rights of the New York City District Water Supply Company, and subject to all its obligations. On February 11th, 1904, the defendant notified this plaintiff in writing that it would furnish water to him after April first next only upon written application for water to be taken through a meter. This notice was subsequently withdrawn, but later, on or about April 11th, 1904, the defendant again sent to this plaintiff a printed notice to the effect that no water would be supplied by the company except through meters on and after October 22d 1904, and at rates largely in excess of those fixed by the contract, to which reference has already been made. On August 1st, 1904, the defendant again sent to the plaintiff a printed notice repeating substantially the last above notice. The foregoing statement of facts contains the substance of the complaint.
The defendant served an answer which was practically a general denial, and pleaded three affirmative defenses. The first defense was, in substance, that compliance with the alleged contract, as claimed by the plaintiff, would amount to a confiscation of the defendant's property and the rights of certain municipalities it was supplying with water, and would work a forfeiture of its franchise, the fixed rate being too low. The second defense alleged that the contract which the plaintiff seeks to enforce isultra vires. The third defense *333 alleged that the defendant is ready and willing to furnish the inhabitants of the village of Pelham Manor with pure and wholesome water at reasonable rates and cost; should the defendant attempt to enforce the alleged contract against the small consumers it would lead to a multiplicity of suits which it could not successfully defend, and that it would be ruinous for the defendant to furnish the large consumers an unlimited supply of water at the rates fixed by the alleged contract, and would amount to a confiscation of its property; that if the alleged contract is valid and enforceable, it amounts to an exclusive franchise, which the village had no power to grant; that if the contract was valid, it gave the plaintiff no cause of action.
The plaintiff interposed separate demurrers to each of these affirmative defenses on the ground that each was insufficient in law upon the face thereof. The Appellate Division affirmed the interlocutory judgment sustaining the plaintiff's demurrers to the affirmative matter set up in the answer, and sustaining the complaint as stating a cause of action.
We agree with the decision of the learned Appellate Division as above stated, and deem it necessary to discuss only one question of law presented by the pleadings. It is clear that the defendant company rests under a contract obligation extending to October 22d 1924, to furnish the consumers of water in the village of Pelham Manor at a fixed rate per annum.
The defendant not only attacks the validity of this contract, but insists that even if it is an existing and binding obligation it cannot be enforced at the suit of an individual private consumer. The plaintiff argues that, "Where a contract for a valuable consideration contains covenants intended to benefit a certain class not parties to the agreement, but within the contemplation of the parties at the time, who are expressed as a class and the promisee has some duty or liability to such class, and interest that the covenant be performed, any person coming within such class may bring an action in his own name in equity to compel performance of the covenant against the *334
promisor." In support of this contention the familiar case ofLawrence v. Fox (
In Lawrence v. Fox (supra) there was a money indebtedness due on a day certain from Holly to Lawrence and in consideration of the loan from Holly to Fox the latter agreed to pay his debt to Lawrence. It is obvious that the case cited and other actions at law following it do not present the precise question raised in the case at bar, which is a suit in equity, although a kindred principle is involved. The question may be thus stated: The village of Pelham Manor in granting privileges to a water company extending over a long period of time, made the same subject to a written contract under seal, having for its object the protection of the present and future private consumers of water. The defendant company, which has been subrogated to all rights and liabilities of the original contracting company, threatened to violate that contract by a printed notice served on a private consumer, the plaintiff, that after a certain day it would no longer abide by the contract rates, but charge a larger amount. The question is, can the plaintiff, under these circumstances, ask a court of equity to permanently enjoin the defendant from violating the contract and compel it to perform the same. That this action can be maintained is no longer an open question in this state.
This court held in Coster v. Mayor (
Judge DENIO further said, continuing the above quotation (p. 180): "Upon that question there has been a good deal of conflict of judicial opinion. As long ago as 1817, Chancellor KENT laid it down as a point decided, and referred to not less than eight English and American cases as sustaining the principle (Cumberland v. Codrington, 3 Johns. Ch. Repts. 255), and since then it has been frequently affirmed by judges, after an attentive examination of cases, as in Barker v. Bucklin (2 Denio, 45), and in the cases therein referred to."
The case of Vrooman v. Turner (
The judgment was reversed in this case because defendant's grantor was not liable to pay the mortgage. If in all the mesne conveyances the grantees had assumed and agreed to pay the mortgage executed by Evans, the mortgagee or his assignee could have enforced the covenant made by the defendant, Mrs. Turner, as it would have been a promise to pay the debt due him made to one also liable to discharge it.
The general principle, that if one person contracts for the benefit of a third person, such third person may maintain an action on the agreement, has been applied since early in the seventeenth century in a large number of cases, the facts in each differing to some extent.
The leading case in England is Dutton v. Pool (1 Ventris, 318, 332), decided in the reign of Charles II. The plaintiff declared in assumpsit that his wife's father being seized of certain lands now descended to the defendant and being about to cut a thousand pounds' worth of timber to raise a portion for his daughter, the defendant promised to the father in consideration that he would forbear to fell the timber, that he would pay the daughter one thousand pounds. After verdict for the plaintiff on non-assumpsit, it was moved in arrest of judgment that the father ought to have brought the action and not the husband and wife. The court said: "It might have been another case if the money had been to have been paid to a stranger; but there is such a nearness of relation between the father and the child, 'tis a kind of debt to the child to be provided for, that the plaintiff is plainly concerned." The judgment was affirmed in the Exchequer (2 Lev. 212; Raym. 302). Some criticism having been expressed as to the soundness of this decision, Lord MANSFIELD said of it a hundred years later, that it would be difficult to conceive how a doubt could have been entertained about the case. (Martyn v.Hind, Cowp. 443; Doug. 142.) The case has been repeatedly followed in this state. *338
The principle established by this case has been applied to contracts entered into by a father for the benefit of his daughter and by a husband for the benefit of his wife. As to the latter instance, see Buchanan v. Tilden (
We are of opinion that the complaint states a good cause of action.
The order and interlocutory judgment appealed from should be affirmed, with costs, and the first question answered in the affirmative and the second in the negative.
CULLEN, Ch. J., GRAY, O'BRIEN, HAIGHT, VANN and WERNER, JJ., concur.
Order and judgment affirmed.