In 1892 Brown and Smith, the owners of properties outside of the village of Union, made an agreement with the Union , Water Company, a copartnership, by which the company was to extend an inch pipe from its main in the village to near their residences for the purpose of supplying the house of Brown and the premises of Smith with water, for which Brown was to pay annually for five years twenty-three dollars and Smith ten dollars, with the understanding that if other premises beyond theirs were supplied through said pipe the rate was to abate accordingly. The price fixed for the five years was intended to cover the cost of laying said pipe beyond the main and for the water used. The contract provided that they should be governed by the same rules and regulations of the company as governed the patrons who used said water within the corporate limits of the village and that the said line was to be so laid as to provide said parties with a good and sufficient supply of water from its present main in the same manner as is provided by said company to its patrons in the village.
In 1908 the village acquired and took over the water system, *571the transfer of title containing an assignment of the contract with Brown and Smith. The plaintiff has succeeded to the Brown farm and he has been supplied with water to January, 1912. Upon purchasing the plant the village put the water system upon a meter basis, the water rates being two dollars and fifty cents for each six months, with twenty-five cents additional for each 1,000 gallons in excess of 7,500. The plaintiff has paid those water rates from time to time, six months in advance, the last payment being June 20, 1912. In January, 1912, the water did not come to the plaintiff’s house and the pipe was found to be frozen and broken near the main. The plaintiff made complaint to the trustees and required that they thaw out and fix the pipe. They manifested a willingness to furnish the water but doubted their right under the law to expend money for repairing the pipe outside of the village, and the plaintiff neglecting to repair or fix the pipe, the defendant closed the connection at the main.
The plaintiff’s contention was that he had a valid contract with the village by which it must furnish him with water, and it must keep the pipe in repair. The defendant’s contention was that it had not the power under the law to make the repairs outside of the village and declined for that reason to repair and thaw out the pipe. Apparently the predecessors of the plaintiff had paid for the pipe beyond the village limits and the plaintiff and his predecessors were under no legal obligation to receive and pay for the water after the contract term of five years. The owners, before the village acquired the plant, had the legal right to furnish water outside of the village and by their contract undertook to do so for five years, which time had expired before the village acquired the plant; nevertheless the company continued to furnish water thereafter, we may assume, I think, at the same rate at which it furnished its patrons in the village, and the defendant after the purchase continued the service.
Section 227 of the Village Law provides that supply pipes connecting with mains and used by private owners or occupants shall be laid and kept in repair at their expense, and section 232 provides that the water commissioners may sell to a corporation or to individuals outside of the village the right to make *572connections with the mains for the purpose of drawing water therefrom and fix the prices and conditions therefor. If the village had constructed a new plant instead of buying an existing plant it would have had no authority to extend the pipe from its mains in the village beyond the village line and supply water to consumers outside the village. It could only permit the outsiders to take the water from the mains at the village line at their own expense.
While the village has the right to acquire a plant and existing water system, I think it is contemplated under section 232 that the plant shall be for the purpose of supplying the village and the residents of the village with water. I think in any event the contract was subject to the powers and limitations of the village when it acquired the plant. The village authorities were well within their rights when they refused to expend money in thawing out and repairing the pipe outside of the village. The plaintiff instead of thawing out and repairing the pipe himself and thus obtaining a supply of water has seen fit to litigate with the village upon technical grounds the question as to the duty of the village to make the repairs. Under all the circumstances the plaintiff, if he desired water from the village plant, should have thawed out and repaired the pipe; failing to do this he cannot charge the village with liability on account of his not receiving the water from the plant.
I think, however, the plaintiff having paid water rates for a time when water was not furnished him, that he may recover the money so paid. I favor a reversal unless the plaintiff stipulates to reduce the recovery of damages to five dollars, and to strike from the judgment the recovery of costs, in which case the judgment is so modified, and as modified affirmed, with costs to the appellant in both courts.
Order affirmed, with ten dollars costs and disbursements.