OPINION OF THE COURT
In this action for a permanent injunction and for monetary damages based on fraudulent misrepresentation, the plaintiff
Rivercrest Sewerage Disposal Corporation (sued herein as Rivercrest Sewage Corporation, Inc.) is a "sewage-works corporation” organized by the defendants Walter J. Socha and Sophie Socha in 1967 under article 10 of the Transportation Corporations Law. Since its incorporation it has operated the
In April of 1978 the defendant Walter J. Socha notified the town that as of June 30, 1978 the system would be abandoned by the corporation and mаintenance would be discontinued. The stock of the corporation, the keys to the facility and a deed to the real property were offered to and rejectеd by the Town Supervisor.
The plaintiff contends that now, when the equipment is out of repair and the facility is in violation of State conservation regulations, the developer, having sold all the homes in the subdivision, plans to abandon the system and force the town to provide necessary sewer service.
The defendants allege that the corporation hаs satisfied its statutory obligation by constructing the sewage disposal plant without cost to the municipality and operating it for over five years. They claim that the operation is nоt profitable and the corporation is facing bankruptcy.
The plaintiff town urges that section 121 of the Transportation Corporations Law prohibits abandonment of the facilities and mandates that the corporation continue collection, treatment and disposal of sewage within the subdivision for which it was incorporated. The section on which the plaintiff relies is entitled "Duty to supply sewage-works facilities” and it provides, inter alia, "[the] corporation shall supply” the municipality wherein it operates "with facilities or make provision for the collection, treatment and disposal of sewage at fair, reasonable, and adequate rates”.
The defendants contend that that section must be read together with section 119 of the same law which, in subdivision 2, requires "a reasonable guaranty from the corporation that said corporation will continue to maintain and operate the system for a period of at least five years”. In addition to that guarantee, section 119 (subd 3, par [a]) provides that "in the event of abandonment or discontinuance оf the maintenance and operation of the system by the corporation” the stock of the corporation, which must be placed in escrow, "shall pass to the local governing body”. It is further provided by subdivision 4 of the same section that "[i]n the event of such abandonment or discontinuance of the maintenance and operation of the system, thе local governing body shall have the right to continue the maintenance and operation of the system”. These provisions, the defendants insist, require the
The extent and duration of the duty of sewage works corporations to supply facilities does not appear to have been judicially defined. Former section 81 (now section 42) of the Transportation Corporations Law, which regulates "WaterWorks Corporations” has been examined by the courts and the provision thеrein that "[e]very such corporation shall supply * * * pure and wholesome water, at reasonable rates and cost” has been interpreted to mean that municipalities served by the franchise can compel the waterworks corporation to install, at its own expense, extension of its distribution system. (See City of New York v Jamaica Water Supply Co.,
The Transportation Corрorations Law, since its enactment in 1909 and its general revision in 1926, has been entitled "AN ACT in relation to transportation corporations, excepting railroads, constituting chapter sixty-three of the consolidated laws.” By separate articles it deals with gas and electric corporations, telegraph and telephone corporations, wаterworks corporations, omnibus corporations, ferry corporations, pipeline corporations, freight terminal corporations, district steam corporаtions and since 1960 with sewage works corporations. In none of the articles of that law except that dealing with sewage works corporations is there any referencе to abandonment or discontinuance of the facilities or services to be provided by the various corporations. It must be assumed that when the Legislature added those provisions and made them applicable only to sewage works corporations, it did so meaningfully and for some purpose. The apparent purpose
It is unclear from the papers submitted on the motion whether, as yet, there has been actual abandonment and discontinuance or whether it is mеrely threatened. Neither is critical to the determination of the motion, however.
It is within the contemplation of the article pursuant to which the corporaton was formed that after five years of operation abandonment or discontinuance of the system may occasion. In such event, the local governing body becomes the sole stockholder of the corporation and as such may continue the service until the system becomes part of a municipal or sewer district system. (Transportation Corporations Law, § 119, subd 4.) That legislative scheme provides for all eventualities and leaves to the local governing body the decision as to whether the inhabitants are to be provided with facilities for sewage disposal. Intervention by the courts would be superfluous. It would be idle for the court, at the request of the sole stockholder, to compel the corpоration to do that which the sole stockholder could and should do by management and operation.
As to all defendants the motion is denied, without costs.