Rothrock Syosset, Inc. v. Kreutzer

• Decision Date: 18 July 1956
• Citation: 154 N.Y.S.2d 816,2 A.D.2d 777
• Parties: ROTHROCK SYOSSET, Inc., Appellant-Respondent, v. Howard P. KREUTZER, Harold J. Simonson and Frank B. Gray, individually and constituting and acting as the Board of Commissioners of the Jericho Water District, in the Town of Oyster Bay, Nassau County, New York, Respondents-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 816

154 N.Y.S.2d 816

2 A.D.2d 777

ROTHROCK SYOSSET, Inc., Appellant-Respondent, v. Howard P. KREUTZER, Harold J. Simonson and Frank B. Gray individually and constituting and acting as the Board of Commissioners of the Jericho Water District, in the Town of Oyster Bay, Nassau County, New York, Respondents-Appellants.

Supreme Court, Appellate Division, Second Department.

July 18, 1956.

Eugene R. Hurley, Mineola, for Rothrock Syosset, Inc.

Leroy G. Edwards, Mineola, for Kreutzer and others. Lester H. Washburn, New York City, on the brief.

Before NOLAN, P. J., and WENZEL, MURPHY, HALLINAN and KLEINFELD, JJ.

MEMORANDUM BY THE COURT.

In an action for money had and received, plaintiff appeals from so much of an order and judgment (one paper) as dismisses a portion of the first cause of action contained in its complaint, on a motion by plaintiff for judgment on the pleadings, and defendants appeal from so much of said order and judgment as grants judgment to plaintiff and against defendants for a portion of the amount claimed by plaintiff in said first cause of action.

Order and judgment reversed, with $10 costs and disbursements to respondents-appellants and motion denied, with $10 costs.

Plaintiff, a developer, owned a parcel of land within the boundaries of the water district of which defendants are commissioners. In its complaint, plaintiff alleges that subsequent to the adoption of a resolution by defendants, authorizing such procedure, it entered into an agreement with defendants by which plaintiff agreed to pay to defendants $8,921. Of that amount, $6,921, was to defray the cost of the installation of water mains in plaintiff's property, and $2,000 was to be applied by defendants to a fund to be used for the implementing of their well supply and storage facilities, and to be repaid by defendants in annual installments. Defendants were to refund to plaintiff any balance of the $6,921 remaining after the payment of the cost of installation. It is further alleged that plaintiff paid $8,921 to defendants, and has received a refund of $279.22. Recovery of the balance of the payment is sought on the ground that defendants had no power to enter into the agreement or to receive the money paid by plaintiff, and that plaintiff's sole legal liability was to pay for what it had received by way of taxes assessed and levied in the same manner and at the same time as taxes for other town charges.

Defendants, in their answer, pleaded that the mains and other facilities furnished were installed pursuant to plaintiff's request at a time when defendants were without lawful authority to incur indebtedness or contract any obligation for their installation, because of lack of funds provided by the town, and for other stated reasons, that the agreement was entered into so that the facilities might be furnished by defendants without contracting any obligation in violation of law, and that defendants have installed the water pipes, mains and appurtenances provided to be installed by the agreement, and that the cost thereof amounted to $6,641.78. It is further pleaded that at all times thereafter defendants have maintained and operated said pipes, mains and appurtenances as part of the water distribution system of the water district. On this state of the pleadings, and on plaintiff's motion for judgment thereon, the Special Term granted judgment to defendants, dismissing that portion of the first cause of action which sought recovery of the balance of the money paid for the cost of the installation of the mains and other facilities, holding that...