I concur with Mr. Justice Laughlin, upon the ground that there is a plain distinction between a tax imposed on real property for the privilege to use water supplied by a municipality and a liability based upon the amount of water actually used by an oceu*738pant of real - property. In Silkman v. Water Commissioners (152 N. Y. 327) this distinction is recognized and applied. The question there before the court arose in "a case where the defendant had' established a scale of-rents' to be charged to person's -using the water, which was governed by the quantity of water-consumed. It was-held under such- circumstances that'the. charge'for the water consumed was not a tax ; that there was a distinction -between rent paid for water actually furnished by. a 'municipal-corporation and used by an individual* and the payment of a'snm in, the-nature 'Of "a-tax for an anticipated benefit arising from the. presence of 'water in the city; that where water is furnished by - a municipal corporation and a charge made based1 upon the amount actually ‘used, it was not a -tax but a liability to pay--for.the-water u?ed upon an express contract that- the person using the water would pay for it át the rates established. Applying this principle- to this case, the obligation to- pay for - -the water used was based upon an express contract between filie city of Hew York and the person using the water (the defendant) by which the defendant became obligated to pay to the city the amount charged, for the water actually used-.; and the plaintiff having been compelled-to pay that charge to. discharge the lien imposed upon its property by the failure of the defendant to pay the amount due-under- its contract with the city,'became; subrogated to- the ■right of the city to collect the amount -due, and. a ' cause of action was, therefore, alleged. ’
McLaughlin, Laughlin, Houghton and Scott, JJ., concurred.
: Judgment affirmed," with costs, with- leave to defendant to withdraw demurrer and to answer on payment of costs.-.;