Opinion
November 6, 1908.
J. Charles Weschler, for the appellant.
Louis Manheim, for the respondent.
On the 14th of August, 1906, plaintiff, pursuant to a contract, conveyed to certain parties five lots upon which tenement houses had just been erected. On the same day he deposited with the defendant $975, under an agreement that if the regular Croton water rents for the year 1906 — that is, the period ending April 30, 1907 — were, on the 13th day of August, 1906, a lien against the premises conveyed, the defendant should pay the said rents out of the money thus deposited and return the surplus, if any, to the plaintiff; but if the rents were not a lien on that day, then the defendant should, on demand, return to the plaintiff the whole amount deposited. The plaintiff thereafter demanded that the whole amount be returned to him, which was refused, and thereupon this action was brought to recover the same. At the conclusion of the trial both sides moved for the direction of a verdict. The plaintiff's motion was granted, and a verdict directed in his favor for the full amount, with interest, and from the judgment entered thereon and from an order denying a motion for a new trial, defendant appeals.
The sole question presented is whether the Croton water rents were a lien against the premises on the 13th of August, 1906. The record of the department of water supply, in so far as the same affects the premises, was put in evidence, and it shows that on the 17th of August, 1906, charges for nine months, that is, from August 1, 1906, to May 1, 1907, were for the first time entered against the premises. These charges amounted in all to $625.50, and were paid on the eighteenth of October following by the defendant, who admits that the balance of the amount deposited with him ($349.50) is due to the plaintiff.
The appellant contends that the water rents were, at the time the money was deposited, a lien, basing his contention upon an ordinance of the city of New York (§ 283); certain provisions of the Greater New York charter (§§ 473, 1017), and a provision of the Tenement House Act (Laws of 1901, chap. 334, §§ 104, 123.) The section of the ordinance referred to provides, among other things, that "all rents for the use of the water shall be paid in advance at the time of applying for the water and before any permit is issued; to be calculated up to the first day of May succeeding; and all rents shall continue to be collected in advance on the first day of May annually, so long as the contract exists." Under this ordinance I do not see how it could be claimed that the rents were a lien because, so far as appears, no application for water for the new buildings had been made and no permit had been issued up to the time the title was passed. The buildings were vacant and at that time required no water supply.
Section 469 of the charter gives the commissioner of water supply, gas and electricity control over the collection of all revenues from the sale or use of water. But it nowhere gives him power to determine when the water charges made by him become a lien upon the property against which the same is charged. He has the right to make the charge and then collect, and if the charge be a proper one under section 473 the same then becomes a lien, and under section 1017 so continues until the charge is paid.
The provisions of the Tenement House Act referred to have no application. Section 104 simply provides that every tenement house shall have water furnished in sufficient quantity at one or more places on each floor occupied by or intended to be occupied by one or more families. And section 123, that if any building hereafter constructed as or altered into a tenement house be occupied in whole or in part for human habitation in violation of the previous section, then the department of water supply shall not permit water to be furnished in such tenement house. These provisions and others of the Tenement House Act are designed solely to regulate the construction, equipment and maintenance of tenement houses and have no relation to water rents, either what shall be charged or when the same become a lien.
As to when the houses were actually finished and whether the water had been turned on prior to the closing of title on the fourteenth of August the evidence is conflicting. The plaintiff testified that he had never made any application for water supply, but it is suggested that he must have done so, otherwise he could not have obtained the certificates from the tenement house department which were issued August tenth. The certificates were simply to the effect that the buildings conform "to the requirements of the Tenement House Act;" they do not overcome the plaintiff's testimony, nor are they in conflict with it if it be true that the buildings were then unoccupied, and that fact is not disputed.
But irrespective of the question when the water was actually turned on there could be no lien until the amount had been determined and an actual entry made in the proper book. It has been uniformly held in cases involving the question as to when a tax becomes a lien that it is only when the amount thereof is ascertained and determined. ( Harper v. Dowdney, 113 N.Y. 644; Lathers v. Keogh, 109 id. 583; Village of Upper Nyack v. Jewett, 86 App. Div. 254; affd., 181 N.Y. 514; Burr v. Palmer, 53 App. Div. 358.)
The same rule is here applicable. The lien did not exist until the charge had been determined and entered upon the books of the department, the seventeenth of August. The court, therefore, properly directed a verdict for the plaintiff for the full amount deposited, with interest.
The judgment and order appealed from are affirmed, with costs.
PATTERSON, P.J., CLARKE, HOUGHTON and SCOTT, JJ., concurred.
Judgment and order affirmed, with costs.