H.R. Moch Co. v. Rensselaer Water Co.

CourtNew York Court of Appeals
Writing for the CourtCARDOZO
Citation159 N.E. 896,247 N.Y. 160
Decision Date10 January 1928
PartiesH. R. MOCH CO., Inc., v. RENSSELAER WATER CO.

247 N.Y. 160
159 N.E. 896

H. R. MOCH CO., Inc.,
v.
RENSSELAER WATER CO.

Court of Appeals of New York.

Jan. 10, 1928.


Action by the H. R. Moch Company, Inc., against the Rensselaer Water Company. From a judgment of the Appellate Division (219 App. Div. 673, 220 N. Y. S. 557), reversing an order of the Special Term, and granting defendant's motion for judgment dismissing the complaint for failure to state facts sufficient to constitute a cause of action, plaintiff appeals.

Affirmed.

See, also, 127 Misc. Rep. 545, 217 N. Y. S. 426.


[247 N.Y. 161]Appeal from Supreme Court, Appellate Division, Third Department.

Glenn A. Frank, of Albany, for appellant.

247 N.Y. 162]Thomas F. McDermott, of Albany, for respondent.
[247 N.Y. 163]CARDOZO, C. J.

The defendant, a waterworks company under the laws of this state, made a contract with the city of Rensselaer for the supply of water during a term of years. Water was to be furnished to the city for sewer flushing and street sprinkling; for service to schools and public buildings; and for service at fire hydrants, the latter service at the rate of $42.50 a year for each hydrant. Water was to be furnished to private takers within the city at their homes and factories and other industries at reasonable rates, not exceeding a stated schedule. While this contract was in force, a building caught fire. The flames, spreading to the plaintiff's warehouse near by, destroyed it and its contents. The defendant, according to the complaint, was promptly notified of the fire, ‘but omitted and neglected after such notice, to supply or furnish sufficient or adequate quantity of water, with adequate pressure to stay, suppress, or extinguish the fire before it reached the warehouse of the plaintiff, although the pressure and supply which the defendant was equipped to supply and furnish, and had agreed by said contract to supply and furnish, was adequate and sufficient

[159 N.E. 897

to prevent the spread of the fire to and the destruction of the plaintiff's warehouse and its contents.’ By reason of the failure of the defendant to ‘fulfill the provisions of the contract between it and the city of Rensselaer,’ the plaintiff is said to have suffered damage, for which judgment is demanded. A motion, in the nature of a demurrer, to dismiss the complaint, was denied at Special Term. The Appellate Division reversed by a divided court.

Liability in the plaintiff's argument is placed on one or other of three grounds. The complaint, we are told, is to be viewed as stating: (1) A cause of action for breach of contract within Lawrence v. Fox, 20 N. Y. 268; (2) a cause of action for a common-law tort, within MacPherson v. Buick Motor Co., 217 N. Y. 382, 111 N. E. 1050, L. R. A. 1916F, 696, Ann. Cas. 1916C, 440; or (3) a cause of action for the breach of a statutory duty. These several grounds of liability will be considered in succession.

[247 N.Y. 164][1][2] (1) We think the action is not maintainable as one for breach of contract.

No legal duty rests upon a city to supply its inhabitants with protection against fire. 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. That being so, a member of the public may not maintain an action under Lawrence v. Fox against one contracting with the city to furnish water at the hydrants, unless an intention appears that the promisor is to be answerable to individual members of the public as well as to the city for any loss ensuing from the failure to fulfill the promise. No such intention is discernible here. On the contrary, the contract is significantly divided into two branches: One a promise to the city for the benefit of the city in its corporate capacity, in which branch is included the service at the hydrants; and the other a promise to the city for the benefit of private takers, in which branch is included the service at their homes and factories. In a broad sense it is true that every city contract, not improvident or wasteful, is for the benefit of the public. More than this, however, must be shown to give a right of action to a member of the public not formally a party. The benefit, as it is sometimes said, must be one that is not merely incidental and secondary. Cf. Fosmire v. National Surety Co., 229 N. Y. 44, 127 N. E. 472. It must be primary and immediate in such a sense and to such a degree as to bespeak the assumption of a duty to make reparation directly to the individual members of the public if the benefit is lost. The field of obligation would be expanded beyond reasonable limits if less than this were to be demanded as a condition of liability. a promisor undertakes to supply fuel for heating a public building. He is not liable for breach of contract to a visitor who finds the building without fuel, and thus contracts a cold. The list of illustrations can be indefinitely extended. The carrier of the mails under contract with the government is not answerable to the merchant who has lost the benefit of a bargain through [247 N.Y. 165]negligent delay. The householder is without a remedy against manufacturers of hose and engines, though prompt performance of their contracts would have stayed the ravages of fire. ‘The law does not spread its protection so far.’ Robins Dry Dock & Repair Co. v. Flint, 275 U. S. 303, 48 S. Ct. 134, 72 L. Ed. 290.

So with the case at hand. By the vast preponderance of authority, a contract between a city and a water company to furnish water at the city hydrants has in view a benefit to the public that is incidental rather than immediate, an assumption of duty to the city and not to its inhabitants. Such is the ruling of the Supreme Court of the United States. German Alliance Ins. Co. v. Homewater Supply Co., 226 U. S. 220, 33 S. Ct. 32, 57 L. Ed. 195,42 L. R. A. (N. S.) 1000. Such has been the ruling in this state (Wainwright v. Queens County Water Co., 78 Hun, 146, 28 N. Y. S. 987;Smith v. Great South Bay Water Co., 82 App. Div. 427, 81 N. Y. S. 812), though the question is still open in this court. Such with few exceptions has been the ruling in other jurisdictions. Williston, Contracts, § 373, and cases there cited; Dillon, Municipal Corporations (5th Ed.) § 1340. The diligence of counsel has brought together decisions to that effect from 26 states. Typical examples are Alabama (Ellis v. Birmingham Waterworks Co., 187 Ala. 552, 65 So. 805); California (Niehaus Bros. Co. v. Contra Costa Water Co., 159 Cal. 305, 113 P. 375,36 L. R. A. [N. S.] 1045); Georgia (Holloway v. Macon Gas Light & Water Co., 132 Ga. 387, 64 S. E. 330); Connecticut (Nickerson v. Bridgeport Hydraulic Co., 46 Conn. 24, 33 Am. Rep. 1); Kansas (Mott v. Cherryvale Water & Mfg. Co., 48 Kan. 12, 28 P. 989,15 L. R. A. 375, 30 Am. St....

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  • New York Citizens Committee On Cable TV v. Manhattan Cable TV, Inc., No. 86 Civ. 0859 (RWS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • December 18, 1986
    ...of liability would impose a "crushing burden" on government and those with whom it contracts, H.R. Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 165, 159 N.E. 896, 897-98 (1928), a concern absent here, plaintiff cites no authority in support of this proposition. In fact, the New York cour......
  • Adams v. City of Fremont, Nos. A074965
    • United States
    • California Court of Appeals
    • December 3, 1998
    ...384.) 9 MacPherson v. Buick Motor Co. (N.Y.1916) 217 N.Y. 382, 111 N.E. 1050 and H. R. Moch Co. v. Rensselaer Water Co. (N.Y.1928) 247 N.Y. 160, 159 N.E. 10 My belief that Rowland v. Christian does not apply to this case should not suggest I think it would justify a different result if it d......
  • Schauf v. Southern California Edison Co.
    • United States
    • California Court of Appeals
    • July 13, 1966
    ...to impose a greater duty upon a city engaged in the same activity. Edison also relies upon Moch Co., Inc. v. Rensselaer Water Co., 247 N.Y. 160, 159 N.E. 896, 62 A.L.R. 1199 where the court, through Chief Judge Cardozo, held that a private water company incurred no liability to an inhabitan......
  • Bennett v. Mis Corp., No. 08-2567.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • June 4, 2010
    ...of harm, or has stopped where inaction is at most a refusal to become an instrument for good.” H.R. Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 159 N.E. 896, 898 (1928). However, this well-accepted principle of tort law is no longer the law in Michigan. See Fultz, 683 N.W.2d at 592. But......
  • Request a trial to view additional results
691 cases
  • New York Citizens Committee On Cable TV v. Manhattan Cable TV, Inc., No. 86 Civ. 0859 (RWS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • December 18, 1986
    ...of liability would impose a "crushing burden" on government and those with whom it contracts, H.R. Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 165, 159 N.E. 896, 897-98 (1928), a concern absent here, plaintiff cites no authority in support of this proposition. In fact, the New York cour......
  • Adams v. City of Fremont, Nos. A074965
    • United States
    • California Court of Appeals
    • December 3, 1998
    ...384.) 9 MacPherson v. Buick Motor Co. (N.Y.1916) 217 N.Y. 382, 111 N.E. 1050 and H. R. Moch Co. v. Rensselaer Water Co. (N.Y.1928) 247 N.Y. 160, 159 N.E. 10 My belief that Rowland v. Christian does not apply to this case should not suggest I think it would justify a different result if it d......
  • Schauf v. Southern California Edison Co.
    • United States
    • California Court of Appeals
    • July 13, 1966
    ...to impose a greater duty upon a city engaged in the same activity. Edison also relies upon Moch Co., Inc. v. Rensselaer Water Co., 247 N.Y. 160, 159 N.E. 896, 62 A.L.R. 1199 where the court, through Chief Judge Cardozo, held that a private water company incurred no liability to an inhabitan......
  • Bennett v. Mis Corp., No. 08-2567.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • June 4, 2010
    ...of harm, or has stopped where inaction is at most a refusal to become an instrument for good.” H.R. Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 159 N.E. 896, 898 (1928). However, this well-accepted principle of tort law is no longer the law in Michigan. See Fultz, 683 N.W.2d at 592. But......
  • Request a trial to view additional results

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