Motion by plaintiff for an order striking out the answer of the defendant on the ground that the same is sham and frivolous and insufficient in law and for summary judgment, and motion by the defendant for summary judgment dismissing plaintiff’s complaint.
The plaintiff seeks to recover the sum of thirty-one dollars, alleged to constitute an overpayment made on plaintiff’s 1938 water bill. It. appears that the plaintiff, on December 16, 1937, paid the sum of ninety-three dollars to the city collector. Asserting that the water rates had been reduced to the scale prevailing in 1933, the plaintiff by this action seeks a return of the overpayment alleged to have been made “ under protest.”
.The complaint herein is fatally defective inasmuch as it is not shown that the payment was involuntary. (Avey v. Town of Brant, 263 N. Y. 320; Deshong v. City of New York, 176 id. 475, 479; Flower v. Lance, 59 id. 603.)
Moreover, it appears, that in January, 1938, the commissioner of water supply fixed and the board of estimate approved water tariffs for the year 1938 at the rates prevailing in the four preceding years. Assuming that the board of aldermen had properly reduced the water rates for the year 1938 by the. ordinance of October 4, 1937, the resolution of the board of estimate adopted on January 3, 1938, would supersede such ordinance. The power to institute changes in rates is with the commissioner of water supply, gas and electricity, subject to the approval of the board of estimate. (Jameson v. Reid, N. Y. L. J. Jan. 25, 1938, p. 398; Geraci v. Goodman, Id. Jan. 19, 1938, p. 291.)
Motion by plaintiff to strike out the answer of the defendant and for a summary judgment is denied and defendant’s motion for summary judgment granted dismissing plaintiff’s complaint, with costs.