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 usés 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 furnish
ing and 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.
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 water works 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 private corporation so acting.
(Oakes Manufacturing Co.
v.
City of New York,
206 N. Y. 221;
Springfield Fire & Marine Ins. Co.
v.
Village of Keeseville,
148 N. Y. 46;
Lefrois
v.
County of Monroe,
162 N. Y. 563, 566, 567.) 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 hable 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 hable far 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.], section 1316;
Hayes
v.
Torrington Water Co.,
88 Conn. 609;
Hamilton
v.
Madison Water Co.,
116 Me. 157;
Green
v.
Ashland Water Co.,
101 Wis. 258;
Jones
v.
Mount Holly Water Co.,
87 N. J. L. 106;
Danaher
v.
City of Brooklyn,
119 N. Y. 241;
Buckingham
v.
Plymouth Water Co.,
142 Penn. St. 221;
Brymer
v.
Butler Water Co.,
172 Penn. St. 489;
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 Company
(225 N. Y. 70). 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 [Cons. Laws, chap. 41], section 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.) The furnishing of water, through a system of water works, 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. L. 69; affd., 72 N. J. L. 185;
Oakes Mfg. Co.
v.
City of New York,
206 N. Y. 221, 228.)
A taker of water from the pipes of a system of water works 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.
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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 usés 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 furnish
ing and 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.
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 water works 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 private corporation so acting.
(Oakes Manufacturing Co.
v.
City of New York,
206 N. Y. 221;
Springfield Fire & Marine Ins. Co.
v.
Village of Keeseville,
148 N. Y. 46;
Lefrois
v.
County of Monroe,
162 N. Y. 563, 566, 567.) 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 hable 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 hable far 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.], section 1316;
Hayes
v.
Torrington Water Co.,
88 Conn. 609;
Hamilton
v.
Madison Water Co.,
116 Me. 157;
Green
v.
Ashland Water Co.,
101 Wis. 258;
Jones
v.
Mount Holly Water Co.,
87 N. J. L. 106;
Danaher
v.
City of Brooklyn,
119 N. Y. 241;
Buckingham
v.
Plymouth Water Co.,
142 Penn. St. 221;
Brymer
v.
Butler Water Co.,
172 Penn. St. 489;
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 Company
(225 N. Y. 70). 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 [Cons. Laws, chap. 41], section 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.) The furnishing of water, through a system of water works, 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. L. 69; affd., 72 N. J. L. 185;
Oakes Mfg. Co.
v.
City of New York,
206 N. Y. 221, 228.)
A taker of water from the pipes of a system of water works 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 aE
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 employees 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 much for the sake of profit as for the comfort and welfare of the people. The sources of supply are necessarily restricted — they must be the adjacent river, streams, pond or lake. Not infrequently the sole available source is, and is known by the people to be, unceasingly unwholesome, and the water from it can be made safe for human consumption only through mechanical or chemical processes. The sources of supply necessarily
drain extended watersheds; the lands of which are used for many and various purposes. Frequently, even generally, it is physically impossible to patrol and protect them from possible contamination were it financially practicable. The waters are never in the actual possession and care of the seller. Whether subjected to filtration or purification or not they are aggregated in outdoor reservoirs. It is not possible for them to be taken into the physical possession of the corporation. They cannot while in the reservoirs be made inaccessible to the smaller or burrowing animals, reptiles, vermin or to malicious or irresponsible persons. The possibilities of contamination are many and varied. There is no conceivable method in which the corporation can absolutely secure and maintain to the waters wholesomeness and freedom from pollution. There is no method of analysis or inspection by which the corporation can with certainty furnish and know that it is furnishing no other than wholesome water. It is conceivable that between the time water is withdrawn from the distributing reservoir as a sample for testing through analysis and the termination of the analysis the water in the reservoir may pass from innocence to viciousness ■— it is quite possible that the reservoir of wholesome water in the morning may be the reservoir of harmful water in the evening. As a matter of fact, consumers of a public water supply do not, generally speaking, regard the corporation as a warrantor or insurer of the wholesomeness of the water. They expect the company to exercise a high degree of vigilance and faithfulness in their duty to furnish them with wholesome water, but realize that to some exteiit risk attends its consumption. Such are the facts, knowledge of the existence of which comes to ordinary intelligence through common observation and experience. The
Rinaldi
case should not be applied to them. It might well be applicable to a case in which water bottled or susceptible to inspection in the bottles by the seller was sold and purchased, as a
specific article, for drinking; but to apply it to a corporation operating a water works system in the way usual and known to all, is contrary to the common law, not contemplated by the statute, oppressive to the corporation and of very doubtful benefit and perhaps of serious detriment to the inhabitants of municipalities. Men will not form corporations which the court will hold obligated, at a risk which may bankrupt and destroy them, to enter into a guaranty or warranty which they cannot fulfill.
The order should be affirmed, with costs, and the questions certified answered in the negative.