We agree with the conclusion of the majority that the contract is still a binding and enforceable agreement as against the City. We conclude, however, that the trial court erred insofar as it decreed that the agreement requires the City to construct new or enlarged disposal plant facilities to handle increased population. The critical part of the trial court’s decision as adopted by the majority is as follows: "Since there is no express provision in the agreement requiring the City to increase the capacity of the disposal plant, the agreement might be read as requiring only the construction by the City of additional sewer lines and connections without any corresponding obligation to provide additional sewage disposal plant capacity so new building could be served. Such an interpretation, however, is an unreasonable one, and, accordingly, the City’s 1924 commitment to serve present and future buildings in the Town and the Village must be construed as including, not only the construction of the necessary sewer lines and connections, but, also, any sewage disposal plant construction which may be required to meet the aforesaid increased demand and the court will so declare.”
*251The agreement does not upon its face require such new construction in the future by the City (see § 6) although it does require the City to maintain and repair and operate the disposal works in section 2 thereof.
Section 3 of the agreement specified that the sewerage system was subject to the approval of the plans and the authorization of funds by the Board of Estimate and Apportionment of the City. The contract specifically refers to a plan already prepared for a sewerage system and disposal works prior to the time when the agreement was entered into. Furthermore, the approval of the agreement as attached thereto by the Board of Estimate and Apportionment was to be for a specified amount of money.
After the original agreement was entered into, it was modified by a written agreement made on February 25, 1925 so that the location of certain lines was changed and the additional cost of such change was to be reimbursed to the City in a specified amount of money by the intervenor-village. Implicit in the contractual arrangement was an intent to. limit capital costs to those envisioned by the plans in existence at the time the agreement was entered into and to keep such costs on the part of the City within the amount authorized by the Board of Estimate and Apportionment. While it was envisioned that there would be additional costs incurred by the future construction of sewer extensions to new inhabitants or buildings, there would be no reason to expect such costs to be of any great consequence and obviously the costs would not be related to an enlargement of the disposal plant.
The agreement demonstrates an intent that the City would only be obligated to construct and build a disposal plant of a certain size and capacity as limited by the express or implicit dollar authorization of its Board of Estimate and Apportionment. This limitation upon the agreement is also apparent in sections 1, 4 and 6 of chapter 630 of the Laws of 1923 which expressly require certain approvals from the City’s Board of Estimate and Apportionment in regard thereto.
The City has in fact reconstructed and enlarged its disposal plant apparently beyond the original authorization of the Board of Estimate and Apportionment. While this might be considered a practical construction of the contract by the parties thereto, there is no reason that such fact should be construed as imposing upon the City a continuing obligation to so enlarge its facilities.
*252Upon the agreement the City is obligated to maintain its existing disposal facilities and also its existing collection lines in an efficient manner; however, since it appears that either the present population of the interveners or their future population will exceed the capacity of the present facilities, the City is entitled to relief to the extent of declaring it is not obligated to construct new or additional sewer disposal plants and that it has no obligation to permit new connections which would exceed the capacity of its current disposal plant when the same is operated in an efficient manner. It appears from the present record that to some extent the present sewer connecting lines might be responsible for any supposed overage of capacity because of needed repairs or sealing which permits water infiltration into the collecting lines.
The judgment should be amended by striking so much of paragraph 4 as requires the City of New York to construct further sewage disposal plant facilities to meet increased demand and inserting in its place a provision that the City is not required to provide new disposal plant facilities or permit new connections which will exceed existing plant capacity, and by striking paragraph 7 thereof in its entirety and by inserting a new decretal paragraph directing a trial of the allegations of paragraph 10 of the defendant’s verified answer to the complaint, and, as so modified, affirmed.
Koreman and Larkin, JJ., concur with Main, J.; Herlihy, P.J., and Sweeney, J., concur in part and dissent in part in an opinion by Herlihy, P.J.
Judgment affirmed, without costs.