259 A.D. 42 | N.Y. App. Div. | 1940
On October 26, 1925, the defendants Carey executed to the plaintiff a mortgage for $1,000 and on April 14, 1927, a second mortgage for $500 covering their property in the city of Oswego. Between May 1, 1933, and February, 1939, appellant, the city of Oswego, supplied water to the mortgaged premises at the regularly established rates for water thus supplied. The mortgagors paid the amounts charged except the sum of fifty-seven dollars. In February, 1939, the plaintiff instituted this action to foreclose its mortgages and joined the city of Oswego as a party defendant. The plaintiff alleged, in substance, that the city supplied said premises with water at various periods between the above dates and that the owners have failed to pay the appropriate “ water rents ” but that said rents are not a lien upon the
The village of Oswego was incorporated by chapter 67 of the Laws of 1828. The city of Oswego was incorporated by chapter 116 of the Laws of 1848. The charter of the city was revised by chapter 394 of the Laws of 1895. The charter as revised was amended by chapter 207 of the Laws of 1902. By title XVI of the charter, as added by this chapter, there was created a department of water consisting of four commissioners. Section 390 of title XVI provided in substance that the department of water “ shall, before the water rates * * * shah become due, prepare and dehver to the city chamberlain a list, giving the names of persons and corporations receiving water, with the amounts due from them, together with a brief description of the property against which the water is a charge, giving street and street number when possible, and such other description as the department may deem necessary, and at the same time prepare and furnish to the persons liable to pay the same, water bills to correspond with such hsts, which bills or duphcates thereof furnished by said department, shall be presented to the chamberlain to be receipted by him when said bills are paid. The chamberlain shah on the twentieth day after such bills shall become due, dehver to the department [of water] a hst of ah water rates then unpaid.” Section 391 of title XVI provided that “ All water rates shall be paid directly to the city
An examination of chapter 207 of the Laws of 1902 discloses that no provision was made impressing a lien on premises served for unpaid water rents. Chapter 394 of the Laws of 1895 was amended by chapter 349 of the Laws of 1915 by adding title XVII. Section 409 of title XVII created and established a “ Water Service Commission ” and constituted it a city department. This department in no way interferes with or supersedes the department of water. This amendment contains no provision relative to liens for unpaid water rents.
By section 2 of Local Law No. 19 of the Oswego Local Laws of 1933 the common council of the city of Oswego repealed section 391 of title XVI of chapter 394 of the Laws of 1895, as added by
Before considering these objections it is important to determine whether taxes and assessments levied on real property by the city of Oswego take precedence over real estate mortgages of record prior to the date upon which such taxes and assessments become hens. By sections 261
We think that section 391 of the charter, as enacted by Local Law No. 19, is not open to any of the objections urged against it. It was the failure of the plaintiff’s mortgagors and the plaintiff itself to make the payments within twenty days for water consumed and not the failure of the city to shut off the water at the expiration of the twenty-day period fixed by the city charter that initiated the hen. The hen for unpaid water rates became effective when the city chamberlain dehvered to the department of water the hst showing the unpaid water rates as he was required to do by section 390 of the city charter. (Home Owners’ Loan Corp. v. Tyson, 133 Ohio St. 184; 12 N. E. [2d] 478, 482.) Section 391 of the charter, as enacted by Local Law No. 19, provides a very simple method for enforcing a water rate lien, namely, by adding the amount thereof “ to the annual city tax on the property to or for which such water was furnished.” Had this been timely done the hen unquestionably would have had precedence over the hens of the plaintiff’s mortgages. The inference is permissible also that, since water rate hens are like assessment and tax hens, the city might enforce them in the manner provided in its charter for the enforcement of hens in the case of delinquent taxes and assessments. (See Village of Haverstraw v. Eckerson, 192 N. Y. 54.) The plaintiff’s constitutional rights under
On the equities the city should have its lien preferred for the reason that the plaintiff must have known when it negotiated •its mortgages that the city was supplying water to the premises described therein. Moreover, by the exercise of reasonable diligence, the plaintiff could have discovered the lien, paid the amount due and added it to the mortgage indebtedness. (Civ. Prac. Act, § 1087.)
We think the city’s lien, under the conceded facts, was superior to the Hen of the plaintiff’s mortgages and the trial court should have so found and held. The judgment, so far as appealed from, should be reversed on the law, with costs, and judgment should be entered declaring the defendant’s Hen for water rates superior to the Hen of the plaintiff’s mortgages and directing that the amount of the defendant’s Hen be paid by the referee out of the proceeds of the sale as provided in section 1087 of the Civil Practice Act.
Certain findings of fact modified.
AH concur. Present — Cbosby, P. J., Cunningham, Dowling, Habbis and McCubn, JJ.
Judgment so far as appealed from reversed on the law, with costs, and judgment directed to be entered declaring the defendant’s Hen for water rents superior to the Hen of the plaintiff’s mortgages and directing that the amount of the defendant’s Hen be paid by the referee out of the proceeds of the sale as provided by section 1087 of the Civil Practice Act. Certain findings of fact modified.
See Oswego Local Laws of 1933, Nos. 5 and 6 respectively. — [Rep.