The defendants, being the members of the Croton aqueduct board, are prosecuted by the plaintiffs, who are proprietors of the St. Nicholas Hotel, to prevent them from cutting off the supply of Croton water, fin-non-payment of the amount charged for the use of the same.
It appears from the evidence, that in 1853 the plaintiffs paid for the use of the Croton water the sum of $1264.16, and for the year 1854, $1545.75. That in 1855 the defendants attached meters to the pipes leading to the premises of the plaintiffs, for ascertaining the quantity of water used by them, and that the result of such examination proved that in 96 days, between July and November, the water used by the plaintiffs exceeded 8,000,000 of gallons ; and that the whole amount of water used on the premises of the plaintiffs from May 1, 1855, for one year, exceeded 36,000,000 of gallons. For this quantity of water the defendants claimed, for that year, at the rate of one cent for every 100 gallons of water. This the plaintiffs refused to pay, and in consequence of such refusal the Croton board notified the plaintiffs that they would stop the supply of water. The plaintiffs thereupon commenced this action, and obtained an injunction against the defendants. Upon the trial of the action Mr. Justice Boosevelt held that the defendants were justified, on the refusal of the plaintiffs to pay the amount claimed, after notice given them, to cut off and stop the supply of water, and that the defendants were entitled to judgment, and a dissolution of the injunction. The plaintiffs excepted to these rulings. Upon the argument of this ca&e it was urged, on the part of the plaintiffs, that the Croton board had no authority to cut off and stop the supply of water ; and that the Croton board had no authority to charge at the rate claimed for the water used by the plaintiffs.
*453It can hardly be necessary to examine the question whether in an ordinary case of a private dwelling, where the amount charged for the water becomes a tax on the land, and is to be paid whether water is used or not, the Croton board has authority to stop the supply of water. The whole argument of the plaintiffs 'is based on this proposition, and the claim is presented that being corporators and householders, they have a right to the water, and are bound to pay the tax therefor.
The money for building the works, for the supply of the city with water, was raised by a loan forming a debt of the city until paid, and it never could have been intended that such debt was to be left without means to be provided for its payment. The plaintiffs concede their liability as holders of the property for such tax as may legally be imposed on the land, although no such provision was made until long after the aqueduct was completed. The act of 1843 provided for raising by tax a sum equal to the payment of the interest, annually.
By the act of 1849, establishing the Croton aqueduct board, the common council were authorized by ordinance to establish a scale of annual rents for the supply of the Croton water, to be called the “ regular rents,” apportioned to different classes of buildings, and such regular rents were to become a charge or lien upon the houses and lots respectively. (Davies’ Laws, p. 984.)
The expressions there used show that the rents intended were such as were applicable to classes of buildings throughout the city, and were to be ascertained by the size of the building rather than its occupation. Such charges were to be universal, and of an uniform rate, wherever the pipes were laid. By the 19th section, buildings and establishments which consume extra quantities of water, in addition to the regular rents might be charged with additional rents, to be called “ extra rents.”
By the 21st section, a list of the regular rents imposed is-to be prepared, and the same is to remain a lien on the premises *454until paid. By the act of 1851, such arrears are to be col-' lected in the manner therein specified, viz. by a sale of the property. And by the 9th section of the act of 1853, (Davies’ Laws, p. 1146,) further provisions are made for the collection of the “ regular rents.”
The examination of these statutes shows conclusively that no provision exists making a charge for Croton water a lien upon property, except such as is included in the term “ regular rents ;” and that the payments provided for in the 19th section, for what is therein termed “extra rents,” are not in any way made a lien upon the land, but must be collected by some other process.
It appears also from these statutes that the common council are to establish a scale of rents, which are to be called the regular rents, but that authority does not necessarily apply to the common council alone, as to the extra rents. The section authorizing such extra rents does not contemplate that such rates are to be fixed by them; but on the contrary, the fair presumption is that such charges are to be fixed by the board, varying in each case according to the quantity to be used. If this be so, then the right necessarily follows that they should regulate the terms on which such extra allowances should be made, and the conditions on which the water should be used. If, for instance, some large factory or other institution should see fit to require a supply of water so large as to consume more of the water than could be spared from the ordinary consumption of the city, without exposing the inhabitants to danger from such an over use of the water, no one for a moment would suppose that the Croton board had not authority to refuse such supply. Other instances might be given where such a power was necessary to be placed in the board, for the proper administration of the whole department; and the only rational interpretation of the whole statute, taken together, is that the Croton board has a right to make every such arrangement, as to extra supply of water, a matter of agreement, *455subject to such terms and conditions as the board shall deem necessary to impose.
If the use of an extra supply of water is to be considered as a special agreement, then the breach of that agreement on the one side by non-payment, justifies the board in refusing any longer to comply with such agreement on their part, and of course justifies them in declining to furnish the water after such breach on the part of the taker. This would be entirely independent of any sanction that might be given by the statute to such a course. In the 27th section of the same act it is provided that rules and regulations for the use of the water, printed on the permit, shall authorize the recovery of penalties, in addition to the cutting off the water, for any violation of the rules, &c.
There is no special provision in the act authorizing the cutting off the water, excepting so far as is contained in this section. It is clear that for some purpose such power was conceded to exist, and I think the proper and only construction to be given to this section is, that the legislature intended the water should not be furnished to those who would not pay for it, and that the power Would exist in those who had charge of this department to withhold the supply, if the terms on which such supply was furnished were not complied with. The words, “ in addition to the cutting off the water,” used in that section, is not to be applied merely to the penalties for violating those rules, but are rather to be considered as conferring a general power extending to the whole supply of water, and as one of the means by which payment for the use of such water should be enforced.
Under the act of 1842, (Laws of 1842, ch. 225,) full power was given to the common council to organize the department as well for the management as for the distribution of the water; and stick, authority necessarily included the right to regulate the Use and fix the terms in cases where no special provision by law to the contrary existed. The ruling of the judge upon this point was not erroneous.
*456The other objection made by the plaintiffs is to the rate charged for the water, and the finding as to the quantity used. My view of this question has been in part expressed in the foregoing portion of this opinion. If'the Croton board had authority, as I think they had, to make the use of extra quantities of water a matter of special agreement, then there can be no doubt but that they also had full authority to fix the price to be paid therefor, only to be controlled by the minimum price limited by the common council, and the other pror visions of that ordinance. By ordinance of the common council of 1851, the common council authorized 'the Croton board to charge extra rates for the use of the Croton water in special cases, and vested in the Croton board a discretion in certain cases. This discretion is objected to by the plaintiffs as unauthorized by the statute. I think, however, there is no ground for such objection. So far as relates to the “regular rents,” which are to be liens on real estate, it would be objectionable, and no such lien could be created unless the amount was fixed by the common council. I have already shown that these charges are not “regular rents,” and can in no event be such liens. Independent of thése provisions, there is nothing which requires the common council to fix the rates called “extra rents,” and nothing which prevents that power from being conferred upon the Croton board. In the absence of any legislative provision to the contrary, the power given to the common council to organize the board and invest it with necessary powers for the distribution of the water, the provisions of the charter of 1849 continuing the Croton board, with the powers of distributing the water, collecting the revenues from the sale of the water, and such other powers as may be conferred by law, would be ample authority for any such power as has been exercised in the present case. The defendants contended, on the argument, that if it were not, the ordinance referred to authorized expressly a charge of one cent for every 100 gallons used by any business beyond 10,000 gallons per day, and therefore the charge as made by them was *457authorized by that ordinance, and was so fixed by the common council; and the presiding justice has found that such was the rate at which the charge was made.
I do not think that provision of the ordinance can be resorted to, in aid of this judgment. The authority there given to charge one cent for every 100 gallons, is in a case where the business used more than 10,000 gallons daily. A slight calculation will show that to come within that provision, the establishment must use more than 36,500,000 gallons annually ; while, on the trial of this case, the whole amount of the water used during the year was found to be 36,072,744 gallons, or less, than the amount required.
But I do not deem it nécessary to bring this case within these provisions, in order to sustain the right of the Croton board to fix the extra rates. I am clearly of the opinion that full power exists in the Croton board, under the statutes and ordinances, to make special charges for the use of the water, in special cases for which no rate is fixed by law, and that there is no ground for interfering with the judgment on that account.
The plaintiffs also object to. the amount found by the court as the quantity of water used by them during the year. It is a sufficient answer to this objection that this is a question of fact to be found by the court, that the only ground on which we can review that finding is that it is against the weight of evidence, and that no evidence has been inserted in the papers submitted to us on this appeal. We must therefore take the findings of fact, as made by the court, to be correct, and can only look at the questions of law presented on those findings.
The amount of water which the court has found was used during the year, by the plaintiffs^ was 36,072,744 gallons, and was less than would have been consumed at the average rate of 10,000 gallons per day. The provisions of that ordinance, so far as applies to a quantity which exceeded that amount, have nothing to do with this case, and there is no charge prescribed in the ordinance applicable to it. It would therefore *458come within the discretionary power conferred on the commissioners, and which I have already said they may lawfully exercise. In fixing the rate to he paid, they have adopted the minimum rate prescribed by the common council for the use of a larger quantity. Of this the plaintiffs have no cause to complain. The extra use of the water is not compulsory. If they use it, they should be willing to pay the price which the authorities have stated to be the lowest sum at which the aqueduct department shall furnish such supplies. If not so paid, the course taken by the defendants was one authorized by the law, and necessary for the proper management of the department ; and without the remedy there adopted, the department would be remediless.
[New York General Term, December 13, 1859.The judgment should be affirmed.
Roosevelt, Sutherland and Ingraham, Justices.]