The relators, receivers of the New York and Westchester Water Company, were granted a peremptory writ of mandamus, requiring the defendant, commissioner of the department of highways of the city of New York, to grant forthwith an application made to him by them to open a street in the borough of the Bronx, New York city,, “ for the purpose of disconnecting, repairing, etc., the service pipe, connecting the residence of Mrs. A. R. Conklin, now Mrs. Henderson, with the main of the New York & Westchester Company, in. said street.” The defendant appeals from the order granting the writ. ' -
It is • not controverted that all the rights and privileges of the-water compan)'- pertain to and may be exercised by the receivers j and among them is the right to’ lay mains, and for proper and lawful purposes to open the streets for placing and taking up and repairing mains, hydrants and other structures and devices for the service of water. The company’s rights were acquired under a contract made, by authority of law with the town of- Westchester while that town was a part of Westchester county. Upon the incorporation of that town within the territorial limits and under the municipal government of the city of New York,, the water company’s rights and privileges continued, but its authority to open streets is now dependent upon the procurement of a permit from the commissioner of the department of highways .of the city of New York. With its rights and duties is a corresponding obligation of the water company to supply water to the occupants of houses in the district or territory in which the company carries on its business, and it is authorized to. make contracts with the owners or occupants of such houses. The appellant admits that the relators have a general right to open the street for the purpose of tapping, repairing or disconnecting pipes, but insists that the right is subject to reasonable limitations. He also' admits that before such right can be exercised his assent-must be obtained, and he contends that it is discretionary with him to grant or withhold a permit.'
On the 14th of March and again on the.2d of April, 1900, the *557relators applied to the defendant for permission to open a street in Westchester, New York city, for the purpose of disconnecting the service pipe from the premises of Mrs. Conklin, situated on Madison avenue, in the borough of the Bronx. It was the service pipe by which water was supplied to these premises. The petition for the writ sets forth that Mrs. Conklin was in arrears for water rents since October 24,1896 ; that those rents had been demanded and refused. A contract had been made between the company and Mrs. Conklin upon her application, which, among other things, recites as follows: •“And I expressly consent that in default of payment for the privileges derived from said connection with said premises that, the water may be shut off until the rent is paid.” The application made by the relators to the defendant to open the street was for the permission “ to disconnect, repair * * * pipe of New York and Westchester Water Company * * * at property of Mrs. A. B. Conklin, now Mrs. Henderson, Madison Avenue and West Farms Road, Westchester.” The defendant declined to grant the permit on the ground that it was represented to him that Mrs. Copklin was not a debtor to the water company ; that she denied any indebtedness or liability to the company, and hence he would not grant the permit to open the street, the inference being that it would be unjust to do so, his refusal being, as he insists, a “ reasonable limitation ” upon the relators’ right. The defendant thus places his refusal to perform an official act upon the sole ground of a controversy existing between private parties as to the ultimate right of one of them to •do a certain thing, the initial step in doing which is the procurement of the permit.
The relators’ general right to a permit to open the street to repair ■or disconnect its pipes cannot be disputed. Granting a permit to make that opening is ■ undoubtedly, to some extent, discretionary with the commissioner. That discretion may relate to the time at which and the method and the conditions under which the surface •of the street may be disturbed, and also to the legality of the purpose, but we do not understand that the commissioner possesses an •arbitrary discretion to withhold a permit simply because he is advised that a dispute exists respecting the right of a party under a contract by which that party Las consented that the supply of water shall be •cut off unless payment of water rents is made pursuant to the con*558tract. It is lawful for the relators to cut off the water supply furnished under the contract with Mrs-. Conklin, if she has defaulted. It is not within the power or jurisdiction of the defendant to pass, upon the merits of a controversy between Mrs. Conklin and the water company. The granting or withholding of a permit does not dispose of that controversy; nor would it necessarily result in the stopping of the water supply. Either Mrs. Conklin or the present owner or occupant of the premises upon a proper showing can enjoin acts under the permit, can compel the relators to supply the premises with water or recover damages from the company for any 'unauthorized act done under the permit.
In a case of this kind, where the only ground of objection to-granting the permit is the existence of a controversy between the water company and the occupant of the premises concerning private rights, we do not think it is within the discretion of a public officer to refuse to perform that which under the circumstances of this case is merely a -ministerial act, there being no public interest involved and no question other than that of the right of the defendant to put. himself in the place of a private party and contest the relators’ claim upon a private quarrel. The issuance of a permit does not impair the private rights of those entitled to a water supply. If they exist, the courts are open for their assertion.
In this view of the case, the order appealed from was correct, and must be affirmed, with costs.
Van Brunt, P. J:, Rumsey and Ingraham, JJ., concurred.;; Hatch, J., dissented.