Opinion
Argued May 17, 1967
Decided May 31, 1967
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, DAVID F. LEE, JR., J.
Francis R. Paternoster for appellant.
J. Lee Rankin, Corporation Counsel ( Francis T. Murray, Stanley Buchsbaum and Theodore R. Lee of counsel), for respondents.
MEMORANDUM. The Appellate Division was right in holding that on this record the relief sought by the Village of Walton to require the City of New York to provide a complete sewage treatment and disposal facility was not available. No clear mandatory duty resting on the city to provide the village facility has been shown. But enough of the basic controversy between city and village has been presented to suggest the scope of the further proceedings expressly left available to the village by the order of the Appellate Division. To the extent the order of the State Health Department directing the village to establish sewage treatment or disposal facilities rests on a public policy of State pollution control, independent of its effect on the water supply of the City of New York, the village may be required itself to provide this facility. To the extent, if any, the burden of cost is increased by the implementation of orders of the State Health Department, the Water Resources Commission, or the Board of Water Supply of the City of New York for the protection of the city's water supply, the city may equitably be required to assume a proportionate share of the cost. These questions may be examined in an action for declaratory judgment, or such other appropriate proceeding as the village may be advised, in which the city, the State Commissioner of Health, the Water Resources Commission and other necessary parties are present. The order should be affirmed, without costs.
Chief Judge FULD and Judges VAN VOORHIS, BURKE, SCILEPPI, BERGAN, KEATING and BREITEL concur.
Order affirmed.