Oakes Mfg. Co. v. City of New York

• Citation: 99 N.E. 540,206 N.Y. 221
• Parties: OAKES MFG. CO. v. CITY OF NEW YORK.
• Decision Date: 01 October 1912
• Court: New York Court of Appeals

206 N.Y. 221

99 N.E. 540

OAKES MFG. CO.

v.CITY OF NEW YORK.

Court of Appeals of New York.

Oct. 1, 1912.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by the Oakes Manufacturing Company against the City of New York. From a judgment of the Appellate Division (141 App. Div. 130,125 N. Y. Supp. 1030), affirming a judgment dismissing the complaint, plaintiff appeals. Affirmed.

John D. Kernan, of Utica, for appellant.

Archibald R. Watson, Corp. Counsel, of New York City (Terence Farley, of New York City, of counsel), for respondent.

HISCOCK, J.

The plaintiff for several years has been the owner of a large factory at Steinway on Long Island, where it has been engaged in the manufacture of logwood extracts or dyes, and during part of that period it has been supplied by the defendant through its regular system with water which in part was pumped by the defendant itself, and in part supplied under a contract with a private corporation. The basis of plaintiff's complaint is that the water thus supplied contains so large a percentage of chlorine that it is unfit for plaintiff's purposes without special preparation which is so expensive as to prevent any profits in the latter's business. The cause of this impurity is that the wells from which the water supply is drawn are situated so near to the ocean that, when they are pumped vigorously, sea water drains through into the wells, and causes the trouble above mentioned.

Originally the action was brought as an equitable one apparently by the plaintiff as a taxpayer seeking to enjoin the city from pumping and from receiving from the private company water from the sources in question, and also asking for damages. On the trial the action became transformed into one of negligence, in which the plaintiff sought to recover damages because of the impure water furnished to it. While plaintiff's case does seem to be one of considerable hardship, since at the time when it built its factory no such trouble existed with the water supply as is now shown, there nevertheless seem to be obstacles in the way of its present quest of relief of which some are insuperable and will be discussed.

[1] The first question which arises is whether the judgment dismissing plaintiff's complaint is one on the merits or one merely of nonsuit. The proceedings on the trial were somewhat informal and out of the ordinary course of procedure. The learned trial judge apparently reached the conclusion early in the trial that plaintiff was prevented from recovering by fundamental principles of exemption from municipal liability, and plaintiff at various points was prevented from giving evidence by the statement of the justice that he would assume the facts to be as alleged in the complaint or as stated by him at the time, and, when the evidence was closed, he indicated that he would grant a motion for a nonsuit. Unfortunately, however, for the plaintiff it and the defendant decided to submit requests for findings, and those submitted by the former, numbering 37 requests to find facts and several requests to find conclusions of law, were all passed on by the trial justice, and the result was that between passing on these requests and various others which I understand to have been submitted by the defendant findings were made generally on the merits of the action, and on which a judgment was entered dismissing the complaint. No application was made by the plaintiff to have this disposition amended or corrected so as to conform with the informal announcement made on the trial that a nonsuit would be granted, and the question is now first discussed before us.

I see no way in which the plaintiff can escape from the judgment as one on the merits or from the binding force of the findings made by the trial court and unanimously affirmed by the Appellate Division. The situation seems to be clearly covered by the decision in Keyes v. Smith, 183 N. Y. 376, 76 N. E. 473. That case was one in equity, and, at the close of the plaintiff's evidence, the defendant offered no evidence, but moved for a dismissal of the complaint on the ground that there was no evidence to sustain the alleged cause of action. No ruling was made on this motion, but subsequently a decision was rendered in accordance with section 1022 of the Code of Civil Procedure, and expressed in findings negativing the allegations made by the plaintiff and which it was necessary for him to sustain by evidence in order to succeed, and judgment was entered in accordance therewith which did not in terms express that it was on the merits. It was held that such judgment was not one of nonsuit, but one on the merits. It was further held that plaintiff, by merely excepting to the unfavorable findings of fact and conclusions of law, waived his right to insist that there had not been a trial and determination of the whole issue in favor of the defendant; that he should have noved the court to correct the judgment roll in that respect, and should not have waited until the question was raised on appeal. See, also, Bliven v. Robinson, 152 N. Y. 333, 46 N. E. 615;Deeley v. Heintz, 169 N. Y. 129, 62 N. E. 158.

The case in coming within the authority of those above cited differs from that of Place v. Hayward, 117 N. Y. 487, 23 N. E. 25, cited by the appellant, where the plaintiff on settlement of a case after a trial before a referee promptly made a motion to have the judgment and findings modified so as to show that the former was one of nonsuit and not one upon the merits.

Thus we are compelled the consider plaintiff's appeal in the light of the facts as they have been established by the unanimously affirmed findings of the trial court.

[2] Plaintiff claims that the defendant has been guilty of negligence, both because of the water which it has furnished and because of the failure to furnish proper water. At the threshold of this complaint lies the query whether the defendant in operating a municipal system for supplying water to ordinary customers on payment of rates was acting in a governmental capacity or as the proprietor of a corporate business wherein...