190 A.D. 252 | N.Y. App. Div. | 1920
Lead Opinion
TMs is an appeal from an order overruling a demurrer to one of two causes of action alleged in a complaint. The complaint, in that part which states the cause of action demurred to, alleges: That the plaintiff was a householder in the defendant city; that the defendant was empowered to maintain a system of water supply for its inhabitants; that it maintained such a system and supplied water for drinking and domestic uses to the premises occupied by the plaintiff for a compensation; that the water so furnished became contaminated with the germs of typhoid fever; that the plaintiff imbibed the water and contracted the disease of typhoid fever; that the defendant warranted the water to be wholesome; that it broke its warranty to the damage of the plaintiff. It is not alleged that the defendant by express words warranted the water nor is the complaint susceptible of a meaning sufficiently comprehensive to include an express warranty. \ln the first place the city charter of the defendant (Laws of 1915, chap. 170) does not empower it to make an express warranty. In the second place the complaint, after stating that the defendant “ conducted ” water from a supply of water through the streets to the dwelling houses of its inhabitants, alleges that “ in thus furnishing and selling such water ” the defendant warranted it to be wholesome. It is, therefore, evident that the plaintiff intends to assert only such a warranty as may be implied from the circumstances attending the delivery of the water. /^Toreover, it is equally apparent that the plaintiff does not intend to assert a sale and delivery of water in separate packages at regular intervals, as tradesmen might sell milk, mineral water or kerosene, and deliver the same in cans or bottles./- For one reason, the city charter (§§ 24, 31 et seq.) empowers the defendant to maintain a water works system, including mains and pipes, in order to deliver water to its inhabitants, but it contains no word giving the defendant authority to carry water about the city in containers for sale and delivery to residents. For another reason, the complaint, as already noted, alleges that the supply was furnished by “ conducting ” it to dwelling houses, which necessarily means that it came thereto by gravity through mains and pipes. Therefore, the simple question of the case is this: Does a city which for a compensation
It is the common-law rule that “ accompanying all sales by a retail dealer of articles of food for immediate use there is an implied warranty that the same is fit for human consumption.” (Race v. Krum, 222 N. Y. 410.) This rule was modified in the year 1911 when the provisions of section 96 of the Personal Property Law were adopted. (Rinaldi v. Mohican Co., 225 N. Y. 70.) That section provides that there is no implied warranty or condition as to the quality or fitness for any particular purpose óf goods sold except, among other cases, “ where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller’s skill or judgment.” "\An implied warranty of personal property is a collateral contract attending a sale thereof, so that, unless there be a sale with the ordinary circumstances of transfer of title and possession of the thing sold, for a price given for that particular thing, the peculiar facts out of which a warranty is implied do not exist, and there is no warranty./ It is, therefore, necessary first to inquire whether there was between these parties in reference to the water furnished a transaction of bargain and sale accompanied by the incidents ordinarily attending such a sale as between a tradesman and a customer.
When water is diverted by a city from rivers, streams and springs, and is allowed or compelled to flow into storage reservoirs, from which it is again allowed to flow through a network of mains and pipes into the houses, tut streets and buildings of a city, so that the occupants of dwellings are, for a compensation, furnished with a supply of water, it may well be doubted whether the water so furnished is a commodity which is bought and sold. In Sweet v. City of Syracuse (129 N. Y. 316) the facts were that the State of New York had appropriated “ the waters of the Skaneateles lake * * * to the use of the public for a reservoir and feeder to the Erie canal ” and that the Legislature had thereafter granted permission to the city of Syracuse to divert all waters in the lake, not needed for the purposes of the canal, by means of mains and pipes, so that the inhabitants of the city might be provided with a
There is another reason why it would seem that the transaction between these parties was not the ordinary transaction of bargain and sale with warranty. The city charter of the
If, however, we assume that the city sold water to the plaintiff, then the question remains whether the sale was such that, within the terms of section 96 of the Personal Property Law, a warranty impliedly accompanied the sale. There was such a warranty only if it were a case “ where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller’s skill or judgment.” In the interpretation of this clause the Court of Appeals in Rinaldi v. Mohican Co. (supra, 74), through Andrews, J., has recently said: “ But we think further that such a purchase, where the buyer may assume that the seller has the
The order should be reversed and the demurrer sustained.
Cochrane, J., concurs; John M. Kellogg, P. J., dissents, with an opinion; Lyon, J., not voting, not being a member of the court; Kiley, J., not sitting.
Concurrence Opinion
The complaint in this action alleges that the defendant is a municipal corporation, authorized by its charter to construct, operate and maintain a water plant for the supplying of pure and wholesome water to its inhabitants; that the plaintiff
If the defendant is maintaining a public nuisance there is little doubt that the plaintiff, suffering special damages, would be entitled to recover such damages, without reference to the question of negligence. No question is here raised as to the cause of action resting in negligence, but the one question is presented whether the municipality, maintaining a water plant for the purposes of sewer sanitation, fire protection and domestic use, rests under the harsh rule which prevails in respect to foods sold for immediate consumption.
It seems clear to me that there is no such liability assumed by a municipal corporation in respect to a water plant, designed primarily to perform a governmental or police function of guarding against fires. It is not to be doubted that in the purveying of water to private consumers for domestic purposes the municipal corporation is occupying the position of a public service corporation, and that it owes the duty to its customers to use reasonable care in the performance of that service, but it is not liable in a civil action for failing to protect the individual from loss by fire, caused through a failure to provide sufficient water (German Alliance Ins. Co. v. Home Water Co., 226 U. S. 220, 227), and I do not understand that the rule sought to be applied here goes to the extent of holding that every vendor of a merchantable product, designed for human consumption, impliedly warrants the quality. The rule, as I understand it, is that “ where the vendor is not the manufacturer, and the purchaser knows this fact, in the absence of proof of an express warranty or of fraud or deceit upon the part of the seller, he is
It is conceded that this is a harsh rule of responsibility, and it ought not to be extended beyond the limits already defined. It obviously does not apply to the cases mentioned by the court in the above quotation, and why should a municipal corporation be held to a higher degree of liability than would attach to the
The order appealed from should be reversed and the demurrer sustained.
Cochrane, J., concurs; John M. Kellogg, P. J., dissents, with an opinion; Lyon, J., not voting, not being a member of the court; Kiley, J., not sitting.
Dissenting Opinion
If we consider the limited power of municipal corporations we are apt to lose sight of the real question. A municipality when it engages in the water business assumes the same liability as rests upon a private corporation or individual
We are not called upon to fix a rule applicable to cities
In my judgment the water was disposed of by the defendant as merchandise, and falls within section 96 of the Personal Property Law (as added by Laws of 1911, chap. 571), and as that act is interpreted by Rinaldi v. Mohican Co. (225 N. Y. 70) there is an implied warranty of its quality. I, therefore, favor an affirmance.
Order reversed, with ten dollars costs and disbursements, and demurrer sustained, with costs.