Smith v. Great South Bay Water Co.

| N.Y. App. Div. | Jul 1, 1903

Woodward, J.:

The complaint, dismissed at the trial, alleged that the defendant, under a contract with the town of Islip, Long Island, constructed a water works system in that town, and erected certain hydrants for the extinguishment of tires; that while the defendant was maintaining such system pursuant to said contract, certain buildings belonging to plaintiff’s, assignor, a taxpayer of said town, were destroyed by fire, by reason of the defendant’s failure to keep its fire hydrants in good working order, and-, to have a sufficient head or force of .water for the extinguishment of fires.

The contract contains these provisions: “ and said party of the first part (the water ■ company) shall and will assume and pay. all . damage _ sustained by any persons or property, or recovered or adjudged against the- town, by reason of -the negligence of the said party of the first part, of their servants, agents or employees, in" constructing, operating or repairing said water works, or in the exercise of the rights and privileges hereby" granted during .the continuance of the franchise, or of any extension or renewal thereof.” “ Said works shall be kept in good working condition, and. for each month that each hydrant shall be unfit for-use the town' authorities may deduct the sum of five dollars from the price' agreed upon "to be paid to the party of the first part.” .

We are asked to overrule Wainwright v. Queens County Water Co. (78 Hun, 146" court="N.Y. Sup. Ct." date_filed="1894-05-14" href="https://app.midpage.ai/document/wainwright-v-queens-county-water-co-5506539?utm_source=webapp" opinion_id="5506539">78 Hun, 146) and to" reverse the. judgment below by adapting to the facts of this - case the principle of Lawrence v. Fox (20 U. Y.. 268) and kindred cases; as applied in Little v. Banks (85 id. 258). In the Wainwright Case (supra) Little v. Banks was fully considered, and the principle of that decision declared inapplicable to a state of facts similar in all material respects to thát alleged in the complaint dismissed at the trial of this action. The later cases of Fire Insurance Co. v.. Village of Keeseville (148 N.Y. 46" court="NY" date_filed="1895-12-19" href="https://app.midpage.ai/document/springfield-fire--marine-insurance-v-village-of-keeseville-3614818?utm_source=webapp" opinion_id="3614818">148 N. Y. 46) and Buffalo Cement Co. v. McNaughton (90 Hun, 74" court="N.Y. Sup. Ct." date_filed="1895-10-16" href="https://app.midpage.ai/document/buffalo-cement-co-v-mcnaughton-5509319?utm_source=webapp" opinion_id="5509319">90 Hun, 74; affd., 156 N.Y. 702" court="NY" date_filed="1898-10-04" href="https://app.midpage.ai/document/buffalo-cement-co-v-mcnaughton-5479570?utm_source=webapp" opinion_id="5479570">156 N. Y. 702) have given additional weight to the Wainwright case as an authority; and in McEntee v. Kingston Water Co. (165 N.Y. 27" court="NY" date_filed="1900-11-27" href="https://app.midpage.ai/document/mcentee-v--kingston-water-co-3625686?utm_source=webapp" opinion_id="3625686">165 N. Y. 27) it is said by Judge Bartlett, referring to'that'case: “It needs no argument to show that the plaintiff was.a stranger to that contract.” * • "

An examination of -these cases and a proper limitation of the doctrine of Lawrence v. Fox {supra) compel the conclusion that the contract between the defendant and the town of Islip .was not made for the benefit of the plaintiff’s assignor, within the meaning of the rule invoked by the plaintiff in' this action. We think the complaint did not state facts sufficient to constitute a cause of action, and was properly dismissed.

. The judgment appealed from should be affirmed.

GrooDBiOH," P. J., Babtlett, Hieschbebg- and Hooiieb, JJ., concurred! ••

Judgment affirmed, with costs.