Opinion
June 13, 1913.
Charles P. Blaney, for the appellant.
Frank A. Bennett [ Joseph S. Wood with him on the brief], for the respondent.
The plaintiff is a resident of the city of Mount Vernon and procures his water supply for domestic uses from the defendant, which is a public service water supply company. He complains that the defendant has threatened to cut off his supply of water unless he agrees to pay therefor at rates advanced by the defendant about thirty-three and one-third per cent higher than those provided to be charged under a contract between the defendant and the city of Mount Vernon for the benefit of its inhabitants, which was made in 1898, and which, as he alleges, is still in force. The complaint further alleges that there has been such a change of circumstances since the making of the contract that the rates therein prescribed have become unreasonably high, and relief is sought that the reasonable rates or charges should be determined judicially. The question arises whether the complaint sets forth two separate causes of action, and, if it does, then the defendant demands that they should be stated and numbered separately as required by section 483 of the Code of Civil Procedure.
It seems clear to me that the complaint does set forth two separate causes of action, because it alleges a threatened invasion of two distinct primary rights of the plaintiff. If the contract is still in force, then the plaintiff has a primary right for its enforcement and can maintain an action accordingly under its provisions. ( Pond v. New Rochelle Water Co., 183 N.Y. 330.) Whether or not it be in force, the plaintiff has another and distinct primary right which arises from the inherent nature of the duties of a public service corporation towards the public, and this right may be asserted independently of the contract in question. ( City of Mount Vernon v. New York Inter Urban Water Co., 115 App. Div. 658.) Where there is an alleged invasion of two separate and distinct primary rights set up in a complaint, then two causes of action are set forth though intermingled in form. ( Stines v. City of New York, 154 App. Div. 276. ) The defendant was entitled to have these separate causes of action set forth separately in the complaint, and it was error for the learned court at Special Term to deny defendant's motion for such relief.
The order is reversed, with ten dollars costs and disbursements, and the motion is granted, with ten dollars costs.
JENKS, P.J., BURR, THOMAS and PUTNAM, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.