The People of State of New York ex rel. The Village of Pelham Manor, Appellant, Respondent, v. New Rochelle Water Company, Respondent, Appellant

The People of State of New York ex rel. The Village of Pelham Manor, Appellant, Respondent, v. New Rochelle Water Company, Respondent, Appellant. Second Department, May 3, 1907. Mandamus — failure of return to, state defense,— public service corporations — duty of water company to supply water. On mandamus brought to compel á water company to furnish water as required by its franchise" and contract with the municipality, an allegation of the return • reciting in hac verba an isolated clause of the contract which prescribes deductions of" rent for neglect to supply .water is subject to demurrer, as not stating ,a defense. . This, bécaúsethe contention that the water company is not obliged - to supply water, but may as an alternative submit to deductions in rent is a ' .question which depends upon the construction of the entire contract and not ■ upon any fragment of'it. ' ■ A plea in the return must be as broad as the writ, unless expressly stated to be a partial defense. A water company operating under a municipal franchise must continue to sup. ' ply water even though it is obtained f torn sources not originally contemplated. Ceoss-appeals by the relator, The Village of Pélham Manor, and the defendant,,the New Rochelle Water Company, from portions of an • interlocutory judgment of the Supreme Court, entered in the office of -the clerk of the county of Westchester on the 14th day of November, 1906, upon the decision of the court, rendered after a trial at the Westchester Special Term, overruling the relator’s demurrer to certain separate statements or defenses of the return to an alternative writ of mandamus and sustaining it as to others. Henry G. K.. Heath, for the relator. Edwin T. JRiee, for the respondent. [MAJORITY — Gaynor, J.:] Gaynor, J.: The alternative writ recites in detail the franchise and contract under which it is claimed that the respondent is under legal obligations to lay water mains, place hydrants, and supply water in the village of Pelham Manor, the relator, and its refusal in certain particulars to comply therewith in each of the said particulars. The lltli subdivision of the return alleges in hceo verba a clause of the “ ordinance and contract ”, which prescribes certain deductions of rent for neglect to supply mains, hydrants and water, and then argues that the effect thereof is that' the respondent is not obliged to supply the same, but may as an alternative submit to such deductions. The allegation is not that by the terms of the contract the respondent is exempt, and. whether it is or not depends on a construction of the entire contract, and not upon any fragment of it. This statement of facts or defence is therefore insufficient on its face. The plea must be as broad as the writ, unless it be expressly stated to be partial. The. same is the case with the allegations of the 12th subdivisión. The 13th only relates to the placing of hydrants, and is therefore also only a partial statement or defence, and not being so designated is not good. The 14th only relates to mains and is in the same case. The 15th is amere argument. .And if the company has a supply from any source it does not matter that it is not from the source originally contemplated; it must do its public duty. The 16th does not contain any new matter at all. All that it embraces is embraced in the issues raised by the denials, or that can be raised by denials. The same is- true of the 17th, 18th and 19th. This case cannot he disposed of on technicalities. • The relator should refrain from captioúsness and bring it on for trial, so that all of the franchises, ordinances, contracts and'other facts may be put before the court. Judgment cannot be given on mere fragments.-. The interlocutory judgment is reversed in the respepts in which it overrules the demurrer to any of the said statements or defences, and affirmed in other respects'; and the demurrer is sustained to each thereof. * Hibschbebg-, P. J., Hookeb, Rich: and Milleb, JJ.,. concurred. Interlocutory judgment modified by sustaining the demurrer to the separate defenses in respect of which the demurrer was overruled in the court below, and as modified affirmed, with costs to the relator. * •