Canavan v. City of Mechanicville

• Decision Date: 22 October 1920
• Citation: 128 N.E. 882,229 N.Y. 473
• Parties: CANAVAN v. CITY OF MECHANICVILLE.
• Court: New York Court of Appeals Court of Appeals

229 N.Y. 473

128 N.E. 882

CANAVAN

v.CITY OF MECHANICVILLE.

Court of Appeals of New York.

Oct. 22, 1920.

Action by Arthur H. Canavan against City of Mechanicville. From order of the Appellate Division (190 App. Div. 252,180 N. Y. Supp. 62) reversing an order of the Special Term (108 Misc. Rep. 579,177 N. Y. Supp. 808) overruling a demurrer of defendant to the second cause of action and sustaining the demurrer, plaintiff, with permission of the Appellate Division, appeals; the certified question being: ‘Do the allegations set forth in that portion of the plaintiff's complaint as a separate and second cause of action state facts sufficient to constitute a cause of action?’

Affirmed, and question certified answered in the negative.

See, also, 180 N. Y. Supp. 932.

The nature of the action and the facts, so far as material, are stated in the opinion.

Pound, Elkus, and Hogan, JJ., dissenting.

Appeal from Supreme Court, Appellate Division, Third Department.

Harold H. Corbin, of Saratoga Springs, for appellant.

Edward C. McGinity, of Mechanicsville, for respondent.

COLLIN, J.

The facts constituting the alleged second cause of action in effect are: The defendant, a municipal corporation, authorized by its charter, provided, maintained, and controlled sources of water supply to furnish necessary water for drinking and domestic uses to the inhabitants of the defendant and means for conducting water from the sources through the streets and to the dwelling houses and other places where it was delivered and sold and consumed by the inhabitants of the defendant. The defendant furnished and supplied, for a compensation, water for drinking and domestic uses to the premises occupied by the plaintiff and his family, consisting of five children, which water, to the knowledge of the defendant, was customarily regularly used and drunk by them. The water contained the germs of typhoid fever, through the drinking of which the plaintiff and his children became ill with that disease, and plaintiff sustained the damages demanded. ‘In thus furnishingand selling such water to its inhabitants and citizens for domestic consumption and to the plaintiff's household for like use the defendant warranted the same to be pure, wholesome, and fit and proper for human consumption and for drinking purposes and free from poison and disease-breeding germs.’ The plaintiff relied on the warranty, and had no means of knowing and did not know the condition of the water. The warranty was broken by the defendant. The respective counsel have the identic understanding, and, correctly under the allegations, that the alleged warranty was not express, and was created, through necessary implication, in furnishing and selling the water for domestic consumption. The question we are to determine is whether or not a warranty was so created.

[1] While the business of maintaining a municipal water system and supplying water to private consumers at fixed compensation is public in its nature and impressed with a public interest, it is not an exercise of governmental or police power. A municipal corporation in aggregating and supplying water for the extinguishment of fires discharges a governmental function. In operating a waterworks system, distributing water for a price to its inhabitants, it acts in its private or proprietary capacity, in which it is governed by the same rules that apply to a privatecorporation so acting. Oakes Manufacturing Co. v. City of New York, 206 N. Y. 221, 99 N. E. 540,42 L. R. A. (N. S.) 286;Springfield Fire & Marine Ins. Co. v. Village of Keeseville, 148 N. Y. 46, 42 N. E. 405, 30 L. R. A. 660, 51 Am. St. Rep. 667; Lefrois v. County of Monroe, 162 N. Y. 563, 566, 567,57 N. E. 185,50 L. R. A. 206. The conclusions of the text-writers and the decisions of the courts, apart from those in this case, have been uniformly that a private water company or a municipality is not an insurer nor liable as a guarantor of the quality of the water it furnishes to its customers in the customary means of pipes and faucets, and cannot be held liable for injuries caused by impure water furnished by it unless it knew or ought to have known of the impurity. Its duty is that of exercising reasonable and commensurate care and diligence in providing an adequate supply of wholesome water at all times. 1 Waters & Water Courses (Farnham) p. 829; 3 Municipal Corporations (Dillon, 5th Ed.), § 1316; Hayes v. Torrington Water Co., 88 Conn. 609, 92 Atl. 406;Hamilton v. Madison Water Co., 116 Me. 157, 100 Atl. 659, Ann. Cas. 1918D, 853;Green v. Ashland Water Co., 101 Wis. 258, 77 N. W. 722,43 L. R. A. 117, 70 Am. St. Rep. 911;Jones v. Mount Holly Water Co., 87 N. J. Law, 106, 93 Atl. 860;Danaher v. City of Brooklyn, 119 N. Y. 241, 23 N. E. 745,7 L. R. A. 592;Buckingham v. Water Co., 142 Pa. 221, 21 Atl. 824;Brymer v. Butler Water Co., 172 Pa. 489, 33 Atl. 707; Milnes v. Mayor, etc., L. R. 10 Q. B. Div. 124; L. R. 12 Q. B. Div. 443; 11 App. Cases, 511; Stein v. State, 37 Ala. 123.

These conclusions and decisions would guide and govern in the instant case without further discussion were it not for our decision in Rinaldi v. Mohican Co., 225 N. Y. 70, 121 N. E. 471. We there adjudged that as a rule of common law a retail dealer of articles of food in selling for immediate consumption impliedly warrants that the same is fit for human consumption. We further adjudged, however, that the statute (Personal Property Law [Consol. Laws, c. 41] § 96), rather than the common law applied to such selling and the mere purchase by a customer does by implication make known to the vendor the purpose for which the article is required and show reliance on the vendor's skill or judgment unless the vendor has not the opportunity to examine the article sold or the customer by inspection and selection affirmatively relied upon his own skill or judgment. The case here is not within the section 96 or the Rinaldi decision. The section in so far as applicable, reads:

‘Subject to the provisions of this article and of any statute in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract to sell or a sale, except as follows: 1. 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 (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose. 2. * * *3. * * * 4. * * * 5. * * * 6. * * *’

The statute contains the definition:

“Goods' include all chattels personal other than things in action and money. The term includes implements, industrial growing crops, and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale.' Section 156, subd. 1.

[2] The furnishing of water, through a system of waterworks, by a water corporation, either private or municipal, to private consumers, at a fixed compensation, is a sale of goods within the meaning of the statute. That the furnishing is without profit to the corporation is weightless. The corporation segregates the water supplied from its sources in reservoirs or pipes of its own and delivers it to those who demand and receive it at a fixed compensation or price. It is a sale of goods as fully as if the water were collected and delivered in bottles for a price. Mayor, etc., of Jersey City v. Town of Harrison, 71 N. J. Law, 69, 58 Atl. 100, affirmed 72 N. J. Law, 185, 62 Atl. 765,65 Atl. 507;Oakes Mfg. Co. v. City of New York, 206 N. Y. 221, 228,99 N. E. 540,42 L. R. A. (N. S.) 286.

[3] A taker of water from the pipes of a system of waterworks of a water corporation or a municipality does not by the mere taking make known, either expressly or by implication, to the seller of the water the particular purpose for which the water is required, and cause it to appear that he relies as to the wholesomeness of the water on the seller's skill or judgment. Under the allegations before us the alleged warranty springs solely from the furnishing and taking of the water. The decisions we have cited hold, in effect, that a water company cannot, has not been understood to, and is not understood to supply wholesome water at all times under all conditions. It is a matter of common knowledge that human skill or judgment cannot unceasingly and under all conditions and circumstances see to it that no unwholesome water is furnished. It is also a matter of common knowledge that a company or municipality does not know that any particular use is to be made of any particular portion taken. Of the water taken the part not used for drinking or human consumption is much the greater. The ordinary conditions which uphold the liability of the marketman or grocer do not exist, and are commonly known not to exist, as to a water company. The former from time to time selects the meats or food stuffs which he will offer as food. He may reject or accept. Accepting, he takes the articles into his actual possession and care, makes them inaccessible to any one other than himself and his employés or to anything objectionable or harmful. He sells them for food, as he is bound to presume in the absence of contrary information, and in selling has full opportunity to inspect and use his skill and judgment. We are speaking of the ordinary conditions under which the seller may, in his skill and judgment, select the articles he sells, has the exclusive possession and care of them before selling, knows he is selling for food, and in selling has reasonable and adequate opportunity for inspection. A corporation furnishing a community with water for the general and ordinary purposes must get the water from sources which are practically available. It frequently is true that the corporation is organized by a few men of the community, not so...