28 N.Y.S. 987 | N.Y. Sup. Ct. | 1894
The plaintiffs rest their right to recover solely upon the contract entered into between the defendant and the fire, district. The allegation is that the defendant “failed, neglected, and refused to comply with its agreement, * * * and that by reason thereof” the buildings were destroyed. No negligence on the part of the defendant is alleged, nor is there any assertion of omission on its part of any act, in its power to perform, to which could be attributed its failure to supply and maintain the required pressure on its pipes. The first question presented, therefore, is whether there is such contractual relation between the defendant and the plaintiffs as to support this action. The allegation in the complaint which it is claimed established such relation is that “said agreement was entered into with defendant * * * for the benefit of the residents and taxpayers within said fire district, and for the benefit of the plaintiffs.” The plaintiffs claim this to be an allegation of a fact which is admitted by the demurrer. I am of the opinion that it is only the pleaders’ conclusion as to the effect of the agreement. The substance of the resolution of the board of supervisors and the agreement entered into between the parties is set
The case chiefly relied upon to support the action, and the one upon which the learned judge who decided the case at special term placed his decision, is Little v. Banks, 85 N. Y. 258. The decision in that case appears to have been put upon two grounds: (1) That the promise sued on was made for the benefit of the plaintiffs; (2) that the contract was with the state for a consideration received from it, upon which the defendants were liable to a private action at the suit of a party injured from a neglect to perform it. Upon the first ground it is distinguished from the present case in that the plaintiffs there were one of a class named in the contract for whose benefit the promise for the breach of which the action was brought was made, and for which breach the contract fixed the damages, and expressly authorized an action therefor in the name of the aggrieved party. The promise which was broken thus became a part of the consideration of the agreement, and the main question presented for the decision of the court was whether the state officers had authority to insert it in the agreement. The second ground upon which the decision rested has in my opinion no application to the present con
The statute under which the board of supervisors acted is not referred to in the complaint, but, being a general law, we take judicial notice of it. It authorizes such boards to establish fire districts in any unincorporated village in the state, and to empower such district to procure a supply of water, and purchase fire apparatus, for the extinguishment of fires therein, * * * and provide for the assessment, levy, and collection of the cost thereof upon such district in the same manner and at the same time as the taxes of the town in which the district was located were assessed and collected. Laws 1885, c. 439. Powers similar to those conferred by this statute are granted to municipal corporations of the state by their charters, or by the laws applicable to towns and incorporated villages, and it was the purpose of this act to meet the necessity for a supply of water in communities that could not avail themselves of general laws. It has never been regarded by the courts as .a part of the corporate duty of a municipal corporation to supply its
I am unable to perceive how the fire district, the contracting party with the defendant, differed, in respect to procuring a supply of water, from the municipal corporations referred to in the cases cited. It had no duty to perform, but, under the act of the board of supervisors, it was permitted to exercise a power. But, unless it had a corporate or official duty, a contractor with it cannot be brought within the rule applied in Robinson v. Chamberlain or in Little v. Banks, supra. And I think it cannot be successfully claimed that territorial districts created by the lawmaking power, but not incorporated, stand in any different relation to the powers and duties which they are authorized and permitted to exercise than municipal corporations, and when, instead of supplying itself with water by a system owned and operated by the district, it contracts with a corporation to perform that service, not only is there no privity of contract between the individual taxpayer and the contracting corporation, but there is no official duty assumed by the corporation. The contracting party is responsible to the district alone, and persons who claim to have been injured because the agreed supply of water was not furnished have no cause of action against the company. The authorities upon this question in other states, with a single exception, sustain this proposition. Davis v. Water Works Co., 54 Iowa, 59, 6 N. W. 126; Fowler v. Water Works Co., 83 Ga.