This is a motion by defendants to dismiss the complaint either pursuant to subdivision 5 of rule 106 of the Rules of Civil Practice or for summary judgment under rule 113, or that the court pursuant to rule 212 in the exercise of its discretion refuse to take jurisdiction, and dismiss the complaint.
In a joint complaint wherein each of the two plaintiffs pleads an asserted cause of action against the City of New York and certain of its officials, a judgment is sought declaratory of rights and for incidental injunctive relief, based on the imposition of charges for the use of the defendant city’s sewer system. The constitutionality of the statutes involved is assailed.
The removal of human and industrial waste and the treatment and sterilization of it is one of the most important services rendered in a community. It must be given front rank with other facilities furnished by government, without which the warp and woof of the fabric which makes up the pattern of life in a complex municipality would be miserably and unutterably threadbare. It is as necessary for simple creature existence as air, food and water. It has been said, perhaps with some flippancy yet with considerable truth, that civilization has progressed as the plumbing craft has advanced; and the fur
In addition to the inherent basic necessity of an adequate sewer system hereinabove discussed, a legal obligation has been placed on the municipality by the Interstate Sanitation Commission, a tri-State body created by the Legislatures of the States of New York, New Jersey and Connecticut. In 1948 a proceeding was instituted by that body to compel the city to adopt and carry out a plan for discontinuing the discharge of raw sewage into the waters surrounding the city. After proceedings, in accordance with law, the commission issued an order (1) fixing December 31, 1959, for the completion of a sewage treatment system in accordance with standards specified by the tri-State commission; (2) requiring the city to undertake and carry out the first stage of a plan submitted by it which would take five years to complete at an estimated cost of slightly less than $95,000,000; and (3) requiring the city to submit to the commission prior to February 1, 1954, a program of proposed construction to complete the pollution abatement program no later than December 31, 1959. It is estimated that the complete ten-year program will cost approximately $250,000,000. Because of the vastness of the program, the lack of a sufficient margin of debt-incurring power to finance it by bonds payable from assessments or from real estate, and the requirements of the city to comply with the timetable established by the Interstate Sanitation Commission, the city was compelled to avail itself of the “ sewer rent ” method of financing which has been authorized since 1929 (L. 1929, ch. 678) by subdivision 26 of section 20 of the General City Law. Under the framework of the laws involved the surplus sewer rental receipts, after payment of current maintenance and annual debt service charges, may be used only for the construction of sewage disposal and treatment plants and intercepting sewers and may not be put
In the first cause of action the plaintiff Tursellino alleges that he is a licensed manufacturer of ice, operating a plant in the borough of Queens in a building on a substantial parcel of land, equipped with expensive machinery, having an aggregate value in excess of $400,000; he alleges further than in the manufacture of ice large amounts of water are used and that about 95% of the water purchased from the City of New York is consumed in the manufacture of ice and the remainder is discharged into the common sewer of the City of New York; that he produces about 100 tons of ice a day. He then alleges the enactment of the various statutes by the State Legislature and the city council and the adoption by the board of estimate of the City of New York of regulations pursuant thereto relating to sewer rents and by virtue of which sewer rents are authorized, levied, collected and administered; that in April and September, 1949, he executed a first and second mortgage to the Seamen’s Bank for Savings in the city of New York and the Frick Company for $60,000 and $113,900, respectively; that said mortgages were immediately thereafter recorded, and that subsequently the City of New York imposed a charge for sewer rents against the premises of the plaintiff which became a lien on January 1, 1951, prior and superior in legal effect to the mortgages above referred to. He then alleges further that the sewer service charge is not a tax; that the purported lien is not a tax lien and not entitled to priority; that the statutory enactments, both State and municipal, are unconstitutional and void insofar as they purport to grant the municipalities the right to establish a lien for sewer rents prior and superior to existing mortgages, in violation of section 10 of article I of the "United States Constitution; that the creation of a lien for sewer rents is not a valid exercise of the State’s taxation power, and is an unconstitutional taking of property without due process of law in violation of the Fourteenth Amendment to the United States Constitution and of section 6 of article I of the New York State Constitution; that the attempt to create a prior lien, as above set forth, is an impairment of the obligation of contract, here specifically the mortgage contracts, in violation of section 10 of article I of the United States Constitution, and that the sewer service charge is unreasonable, inequitable, unlaw
The plaintiff, Supreme Coal & Ice Corp., in the second cause of action set forth in the complaint makes substantially the same allegations as does Tursellino, the coplaintiff, except that there is no averment concerning or involving any previously existing mortgage liens against its property.
As stated at the outset defendants presently attack the complaint and move to dismiss it as legally insufficient on its face pursuant to rule 106, or in the alternative move for summary judgment under rule 113 on the ground that the complaint is insufficient when tested by affidavits, or further, alternatively, for a dismissal under rule 212 appealing to the discretion of the court since there is no demonstrated necessity for a declaration of rights and that the parties have other and adequate forms of relief to which they should resort.
The court is most grateful for the assistance received through the exhaustive research task to which counsel for both sides dedicated themselves. The briefs submitted, the pleadings and the motions addressed thereto raise several questions.
First of all, does an action for declaratory judgment lie? Although rule 212 vests discretionary power in the courts, it is well settled that where the constitutionality of a statute is involved the remedy of relief by declaratory judgment is especially applicable. (Dun & Bradstreet, Inc., v. City of New York, 276 N. Y. 198; Commission of Public Charities v. Wortman, 255 App. Div. 241; Board of Educ. v. Van Zandt, 119 Misc. 124, affd. 204 App. Div. 856, affd. 234 N. Y. 644.)
Defendants’ motion under subdivision 5 of rule 106 admitting all the allegations of the complaint, puts in issue the constitutionality of the several enactments above set forth.
Plaintiff Tursellino takes the position that the creation of a lien senior to the mortgages executed in favor of the Seamen’s Bank and the Frick Company is an impairment of the obligation of contract in violation of section 10 of article I of the United States Constitution. His argument in this respect assumes the recognition of the obligation to pay the sewer rental charge if he accepts the service. It is important to note
However, plaintiff and his corporate coplaintiff come squarely within the main purposes of the statutes providing for sewer rentals and pose the question of the constitutionality of the levy itself. They assert that by reason of the several objections hereinafter set forth they have been deprived of their property without due process of law.
Charges for water have been held valid levies (Security Bldg. & Loan Assn. v. Carey, 259 App. Div. 42, affd. 286 N. Y. 646; Provident Inst. for Sav. v. Mayor & Aldermen of Jersey City, 113 U. S. 506), and so have sewer service fees (Carson v. Brockton Sewerage Comm., 182 U. S. 398). Since the social aspects of a water supply and sewer service system are analogous, and since enabling legislation of both follows the same pattern, the legal aspects of rental charges for such services are pari passu.
The stress of both plaintiffs’ argument is not only that particular charges fixed by the commissioner are unreasonable and that the method is unreasonable, but even more important that any charge at all is unreasonable. But as indicated in the Carson case (supra), there is no element of deprivation here or even of taxation but merely one of contract into which the plaintiffs might or might not enter. As in the case of water service they could use the sewer or not, as they chose. If they used it, they were required to pay the rental fixed by the municipal authorities.
The plaintiffs in their brief argue also that the city might have chosen a different and better method for raising the funds necessary to defray the cost of constructing sewage treatment and disposal plants, citing the system used in Cleveland, Ohio,
Plaintiffs assert further that the dollar yield of the rent charge will be far in excess of what is required contrary to the limited purposes of the enabling statutes. The allegation in this respect is conclusory, is unsupported by anything in the pleadings, and is prophesy rather than fact. Such is the situation also to some degree with reference to the analysis and study submitted in the answer of the city although it cannot be gainsaid that the city’s position is more amply supported than is that of the plaintiffs. But soothsaying is not the touchstone by which the constitutionality of a statute is to be determined. The question is whether the law is designed to accomplish a legitimate purpose. When so tested, the answer with reference to the legislation here under consideration must be in the affirmative. The court can find no infirmity in the statutes on any of the grounds raised by plaintiffs so far as their constitutionality is concerned.
The complaint also questions the fairness and reasonableness of the sewer rental rate fixed by the statute, to wit, one third of the water tax, in view of plaintiff Tursellino’s alleged consumption of 95% of the water as an industrial user with a return of only 5% of the water to the sewer; and the plaintiff Supreme Coal and Ice Corporation takes the position that one sixth instead of one third of the water tax would be a fair and reasonable basis for fixing the sewer rental charge. The allegations of the pleading have been outlined above in gross, but it is now necessary to consider some of them in detail.
Paragraphs 9, 10,11 and 12 of the first cause of action allege the enactment of the various statutes and laws which empower the City of New York to levy and administer the sewer rentals, including the enforcement measures to insure collection. They are incorporated in the complaint “ by reference and made a part ” thereof. By paragraph 25 they are realleged and made part of the second cause of action. Paragraphs 23 and 41 of the complaint allege that plaintiffs respectively have no adequate remedy at law.
In any event, the procedures outlined above insure plaintiff an opportunity to be heard. As stated in the case of People ex rel. Broadway & 96th St. Realty Co. v. Walsh (203 App. Div. 468; cited with approval by the Court of Appeals in Matter of Towers Management Corp. v. Thatcher, 271 N. Y. 94), at page 475: “ This makes a clear and orderly procedure, whereby any person aggrieved may first appeal ” to the administrative body “ and then may test its action as in that case by certiorari.”
Thus, the allegation of the complaint that the plaintiff has no adequate remedy at law is completely negated. Under such circumstances the court should not take jurisdiction. As was said by Chief Judge Cardozo in Newburger v. Lubell (257 N. Y. 383, 386): “ A suit for a declaratory judgment is a discretionary remedy (Civ. Prac. Act, § 473), which may be withheld if existing forms of action are reasonably adequate (Rules Civ. Prac. rule 212).” (See, also, Leary v. Leary, 253 App. Div.
Furthermore, in an action for declaratory judgment special attention must be given to the prayer for relief.
Rule 211 of the Rules of Civil Practice specifically provides:
“ Prayer for relief. The prayer for relief in the complaint shall specify the precise rights and other legal relations of which a declaration is requested and whether further or consequential relief is or could be claimed. If further relief be claimed in the action, the nature and extent of such relief shall be stated.”
In the complaint the prayer for relief asks that the relevant statutes be declared unconstitutional and prays further for incidental injunctive relief. It does not seek a determination of the issues as to whether plaintiffs’ sewer rent should be 5% or some other percentage of the standard sewer rent of one third of the water tax.
Even though there still remain in the complaint sufficient allegations to state a cause of action on whether the standards laid down by the statute have been applied properly or fairly, an issue which the plaintiffs have a right to raise, it can not be litigated in this action for declaratory judgment. This is especially so since the plaintiff has an adequate remedy at law and the prayer of the complaint for relief does not encompass the request for judgment on this issue.
The motion to dismiss the complaint under subdivision 5 of rule 106 is granted.
Settle order on notice.