Parfitt v. Furguson
| Decision Date | 25 April 1899 |
| Citation | 159 N.Y. 111,53 N.E. 707 |
| Parties | PARFITT v. FURGUSON et al. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from supreme court, appellate division, Second department.
Action by Walter E. Parfitt against Cornelius Furguson and others. From a judgment of the appellate division (38 N. Y. Supp. 466)affirming a judgment entered on a decision dismissing the complaint (33 N. Y. Supp. 1111), plaintiff appeals. Affirmed.
Edward M. Grout, for appellant.
Benjamin F. Tracy and James C. Church, for respondents.
This action was brought by the plaintiff, as a taxpayer of the town of New Utrecht, in the county of Kings, to cancel and annul certain contracts made with the Kings County Gas & Illuminating Company for the lighting of the streets of the town. The legislature in 1888 (chapter 576) passed an act entitled ‘An act establishing a board of improvement and defining its powers and duties, and to provide for lighting the streets and other places in the town of New Utrecht, in the county of Kings.’ Under the provisions of this act a board of improvement was created in the town, consisting of the supervisor and four other members, to be appointed, one by the supervisor, another by the justice of the peace, another by the assessors, and the last one by the highway commissioners of the town. They were authorized and empowered to divide the town into gas districts, and to enter into a contract with any gas company to supply gas for lighting the streets for such periods, not exceeding 10 years, and upon such terms as they may deem expedient, provided that, before making such contract, the board shall advertise in two daily newspapers published in Kings county three times a week for three successive weeks for bids for such contracts, and the contract to be awarded to the company offering the lowest bid. This act was amended by chapter 361 of the Laws of 1889, chiefly with reference to the levying of the taxes and defraying the expenses incident to the lighting of the streets. Under the provisions of these acts the board so constituted on the 26th day of December, 1889, entered into a contract with the Kings County Gas & Illuminating Company, in and by the terms of which the company agreed to erect and maintain the necessary gas tanks and appurtenances for the storage and supply of illuminating gas sufficient for the town, and to furnish all mains, branches, and connections with the lamp-posts erected by the town, and to manufacture and supply the town with illuminating gas at an expense not to exceed $28 per lamp per year for each lamp lighted and maintained by the town, and to supply gas to all public buildings and private consumers in the town upon or along the line of its mains, at a price not to exceed $2.25 per 1,000 feet of gas consumed. The contract was to remain in force for 10 years, and contained the provision on the part of the board of improvement that ‘no other gas or electric company shall have the consent of the party of the first part to extend its mains or to lay its pipes or conductors within said town of New Utrecht during the term of this agreement.’ Pursuant to this agreement, the gas company erected its plant and tanks with a capacity for the storage of 600,000 cubic feet of gas, and laid 93 miles of its mains for the distribution of gas through the streets of the town, at an expense of at least $600,000; but before it commenced the supplying of gas to the town the legislature, by chapter 59 of the Laws of 1891, again amended chapter 576 of the Laws of 1888, chapter 361 of the Laws of 1889, so as to empower the board, in its discretion, to provide for the lighting of any of the streets in the town, and for the payment of the expenses thereof by the town, and then provided: ‘Nothing herein contained shall be construed so as to impair the force of any contract heretofore made by or with said board for lighting the streets of said town, and establishing the maximum limit of price to be charged to private or individual consumers of gas, but the same is hereby in all respects confirmed, and may be extended upon like terms and conditions for such further period, not exceeding fifteen years, as in the judgment of said board may be deemed most expedient and for the best interests of the town.’ Under this enactment the board entered into a further contract with the company, in which the company agreed to furnish gas to private consumers at a price not to exceed $1.75 per 1,000 cubic feet of gas consumed; and in consideration of this the board extended the terms of the contract for a further period of 15 years.
As we have seen, the trial resulted in favor of the defendants, and the judgment has been affirmed in the...
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Knapp v. Fasbender
...the power of the board of trustees to include public works, it would hardly be necessary to cite the case of Parfitt v. Furguson, 159 N.Y. 111, 116, 53 N.E. 707, 709, to establish that it is unconstitutional, where this court said: 'The establishing of a board of improvement for the town, a......
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New Rochelle Water Co. v. City of New Rochelle
...pursuant to statute, expressly undertakes to bear relocation costs). In Parfitt v. Ferguson, 3 App.Div. 176, 38 N.Y.S. 466, aff'd 159 N.Y. 111, 53 N.E. 707, a contract between the Board of Improvement and the Gas and Illuminating Company was upheld in a taxpayer's action which sought to dec......
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Village of Upper Nyack v. Christian and Missionary Alliance
...are surrendered without express permission of the legislature are beyond the powers of the municipality and are void (Parfitt v. Furguson, 159 N.Y. 111, 53 N.E. 707; Atlantic Beach Property Owners' Association, Inc. v. Town of Hempstead, 3 N.Y.2d 434, 165 N.Y.S.2d 737, 144 N.E.2d 409). Howe......
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Dean v. Bell
...not give a false idea as to the subject and nature of the legislation actually embodied in the bill.’ See, also, Partitt v. Furguson, 159 N. Y. 111, 116, 117,53 N. E. 707. The views which we have expressed lead to the conclusion that the order of the Appellate Division should be reversed an......