H. T. Kellogg, J.:
TMs is an appeal from an order overruling a demurrer to one of two causes of action alleged in a complaint. The complaint, in that part which states the cause of action demurred to, alleges: That the plaintiff was a householder in the defendant city; that the defendant was empowered to maintain a system of water supply for its inhabitants; that it maintained such a system and supplied water for drinking and domestic uses to the premises occupied by the plaintiff for a compensation; that the water so furnished became contaminated with the germs of typhoid fever; that the plaintiff imbibed the water and contracted the disease of typhoid fever; that the defendant warranted the water to be wholesome; that it broke its warranty to the damage of the plaintiff. It is not alleged that the defendant by express words warranted the water nor is the complaint susceptible of a meaning sufficiently comprehensive to include an express warranty. \ln the first place the city charter of the defendant (Laws of 1915, chap. 170) does not empower it to make an express warranty. In the second place the complaint, after stating that the defendant “ conducted ” water from a supply of water through the streets to the dwelling houses of its inhabitants, alleges that “ in thus furnishing and selling such water ” the defendant warranted it to be wholesome. It is, therefore, evident that the plaintiff intends to assert only such a warranty as may be implied from the circumstances attending the delivery of the water. /^Toreover, it is equally apparent that the plaintiff does not intend to assert a sale and delivery of water in separate packages at regular intervals, as tradesmen might sell milk, mineral water or kerosene, and deliver the same in cans or bottles./- For one reason, the city charter (§§ 24, 31 et seq.) empowers the defendant to maintain a water works system, including mains and pipes, in order to deliver water to its inhabitants, but it contains no word giving the defendant authority to carry water about the city in containers for sale and delivery to residents. For another reason, the complaint, as already noted, alleges that the supply was furnished by “ conducting ” it to dwelling houses, which necessarily means that it came thereto by gravity through mains and pipes. Therefore, the simple question of the case is this: Does a city which for a compensation [254]*254supplies water through a water pipe to a building there to be used by an inhabitant, impliedly warrant that the water is wholesome and fit for human consumption?
It is the common-law rule that “ accompanying all sales by a retail dealer of articles of food for immediate use there is an implied warranty that the same is fit for human consumption.” (Race v. Krum, 222 N. Y. 410.) This rule was modified in the year 1911 when the provisions of section 96 of the Personal Property Law were adopted. (Rinaldi v. Mohican Co., 225 N. Y. 70.) That section provides that there is no implied warranty or condition as to the quality or fitness for any particular purpose óf goods sold except, among other cases, “ 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.” "\An implied warranty of personal property is a collateral contract attending a sale thereof, so that, unless there be a sale with the ordinary circumstances of transfer of title and possession of the thing sold, for a price given for that particular thing, the peculiar facts out of which a warranty is implied do not exist, and there is no warranty./ It is, therefore, necessary first to inquire whether there was between these parties in reference to the water furnished a transaction of bargain and sale accompanied by the incidents ordinarily attending such a sale as between a tradesman and a customer.
When water is diverted by a city from rivers, streams and springs, and is allowed or compelled to flow into storage reservoirs, from which it is again allowed to flow through a network of mains and pipes into the houses, tut streets and buildings of a city, so that the occupants of dwellings are, for a compensation, furnished with a supply of water, it may well be doubted whether the water so furnished is a commodity which is bought and sold. In Sweet v. City of Syracuse (129 N. Y. 316) the facts were that the State of New York had appropriated “ the waters of the Skaneateles lake * * * to the use of the public for a reservoir and feeder to the Erie canal ” and that the Legislature had thereafter granted permission to the city of Syracuse to divert all waters in the lake, not needed for the purposes of the canal, by means of mains and pipes, so that the inhabitants of the city might be provided with a [255]*255supply of water. It was held in that case that the State by granting such permission had not appropriated public property for local or private purposes within the meaning of the Constitution of 1846 (Art. 1, § 9; now Const, art. 3, § 20), for the reason that the State had never acquired a property right in the waters of the lake. It was there said:\“ It is a principle, recognized in the jurisprudence of every civilized people from the earliest times, that no absolute property can be acquired in flowing water. Like air, light, or the heat of the sun, it has none of the attributes commonly ascribed ¡Z to property, and is not the subject of exclusive dominion or control. * * * In this case the State never acquired, or could acquire, the ownership of the aggregated drops that comprised the mass of flowing water in the lake and outlet, though it could and did acquire the right to its use.’/XThat case is not distinguishable from the case under consideration^, through the fact that there the reservoir which detained the^ waters was a natural lake while here there may have been a reservoir which was artificially created to supply the pipes through which the water was furnished/ Waters coming into a storage reservoir, whether natural or artificial, are flowing, not stagnant, waters. They are received by flowage, and they make their exit by flowage, whether through overflow pipes into drains, or through mains and pipes into private dwellings, where the water not used, or used and not consumed, again passes off by flowage and makes its escape. \Waters thus passing into a reservoir are not reduced to possession by a city,") 7 nor does possession thereof or title thereto pass, gallon by" gallon, or drop by drop, from the city to an inhabitant, whenever the inhabitant taps the pipe which brings it to his house/ ^Therefore, it would seem that water was not the subject of barter and sale between these parties/ Rather would it seem that this plaintiff, for a compensation paid, enjoyed a right or privilege to make use of water as it passed through his dwelling, conducted in pipes installed by the defendant, precisely as a riparian owner might enjoy the right to take water from an open stream.
There is another reason why it would seem that the transaction between these parties was not the ordinary transaction of bargain and sale with warranty. The city charter of the [256]*256defendant provides for the maintenance of a water works system through general taxation or by assessment of the properties supplied. If the first plan is in vogue then clearly there is no sale because for the thing furnished no purchase price is paid. This would likewise seem to follow if the expense is borne by assessments upon the properties benefited.
Free access — add to your briefcase to read the full text and ask questions with AI
H. T. Kellogg, J.:
TMs is an appeal from an order overruling a demurrer to one of two causes of action alleged in a complaint. The complaint, in that part which states the cause of action demurred to, alleges: That the plaintiff was a householder in the defendant city; that the defendant was empowered to maintain a system of water supply for its inhabitants; that it maintained such a system and supplied water for drinking and domestic uses to the premises occupied by the plaintiff for a compensation; that the water so furnished became contaminated with the germs of typhoid fever; that the plaintiff imbibed the water and contracted the disease of typhoid fever; that the defendant warranted the water to be wholesome; that it broke its warranty to the damage of the plaintiff. It is not alleged that the defendant by express words warranted the water nor is the complaint susceptible of a meaning sufficiently comprehensive to include an express warranty. \ln the first place the city charter of the defendant (Laws of 1915, chap. 170) does not empower it to make an express warranty. In the second place the complaint, after stating that the defendant “ conducted ” water from a supply of water through the streets to the dwelling houses of its inhabitants, alleges that “ in thus furnishing and selling such water ” the defendant warranted it to be wholesome. It is, therefore, evident that the plaintiff intends to assert only such a warranty as may be implied from the circumstances attending the delivery of the water. /^Toreover, it is equally apparent that the plaintiff does not intend to assert a sale and delivery of water in separate packages at regular intervals, as tradesmen might sell milk, mineral water or kerosene, and deliver the same in cans or bottles./- For one reason, the city charter (§§ 24, 31 et seq.) empowers the defendant to maintain a water works system, including mains and pipes, in order to deliver water to its inhabitants, but it contains no word giving the defendant authority to carry water about the city in containers for sale and delivery to residents. For another reason, the complaint, as already noted, alleges that the supply was furnished by “ conducting ” it to dwelling houses, which necessarily means that it came thereto by gravity through mains and pipes. Therefore, the simple question of the case is this: Does a city which for a compensation [254]*254supplies water through a water pipe to a building there to be used by an inhabitant, impliedly warrant that the water is wholesome and fit for human consumption?
It is the common-law rule that “ accompanying all sales by a retail dealer of articles of food for immediate use there is an implied warranty that the same is fit for human consumption.” (Race v. Krum, 222 N. Y. 410.) This rule was modified in the year 1911 when the provisions of section 96 of the Personal Property Law were adopted. (Rinaldi v. Mohican Co., 225 N. Y. 70.) That section provides that there is no implied warranty or condition as to the quality or fitness for any particular purpose óf goods sold except, among other cases, “ 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.” "\An implied warranty of personal property is a collateral contract attending a sale thereof, so that, unless there be a sale with the ordinary circumstances of transfer of title and possession of the thing sold, for a price given for that particular thing, the peculiar facts out of which a warranty is implied do not exist, and there is no warranty./ It is, therefore, necessary first to inquire whether there was between these parties in reference to the water furnished a transaction of bargain and sale accompanied by the incidents ordinarily attending such a sale as between a tradesman and a customer.
When water is diverted by a city from rivers, streams and springs, and is allowed or compelled to flow into storage reservoirs, from which it is again allowed to flow through a network of mains and pipes into the houses, tut streets and buildings of a city, so that the occupants of dwellings are, for a compensation, furnished with a supply of water, it may well be doubted whether the water so furnished is a commodity which is bought and sold. In Sweet v. City of Syracuse (129 N. Y. 316) the facts were that the State of New York had appropriated “ the waters of the Skaneateles lake * * * to the use of the public for a reservoir and feeder to the Erie canal ” and that the Legislature had thereafter granted permission to the city of Syracuse to divert all waters in the lake, not needed for the purposes of the canal, by means of mains and pipes, so that the inhabitants of the city might be provided with a [255]*255supply of water. It was held in that case that the State by granting such permission had not appropriated public property for local or private purposes within the meaning of the Constitution of 1846 (Art. 1, § 9; now Const, art. 3, § 20), for the reason that the State had never acquired a property right in the waters of the lake. It was there said:\“ It is a principle, recognized in the jurisprudence of every civilized people from the earliest times, that no absolute property can be acquired in flowing water. Like air, light, or the heat of the sun, it has none of the attributes commonly ascribed ¡Z to property, and is not the subject of exclusive dominion or control. * * * In this case the State never acquired, or could acquire, the ownership of the aggregated drops that comprised the mass of flowing water in the lake and outlet, though it could and did acquire the right to its use.’/XThat case is not distinguishable from the case under consideration^, through the fact that there the reservoir which detained the^ waters was a natural lake while here there may have been a reservoir which was artificially created to supply the pipes through which the water was furnished/ Waters coming into a storage reservoir, whether natural or artificial, are flowing, not stagnant, waters. They are received by flowage, and they make their exit by flowage, whether through overflow pipes into drains, or through mains and pipes into private dwellings, where the water not used, or used and not consumed, again passes off by flowage and makes its escape. \Waters thus passing into a reservoir are not reduced to possession by a city,") 7 nor does possession thereof or title thereto pass, gallon by" gallon, or drop by drop, from the city to an inhabitant, whenever the inhabitant taps the pipe which brings it to his house/ ^Therefore, it would seem that water was not the subject of barter and sale between these parties/ Rather would it seem that this plaintiff, for a compensation paid, enjoyed a right or privilege to make use of water as it passed through his dwelling, conducted in pipes installed by the defendant, precisely as a riparian owner might enjoy the right to take water from an open stream.
There is another reason why it would seem that the transaction between these parties was not the ordinary transaction of bargain and sale with warranty. The city charter of the [256]*256defendant provides for the maintenance of a water works system through general taxation or by assessment of the properties supplied. If the first plan is in vogue then clearly there is no sale because for the thing furnished no purchase price is paid. This would likewise seem to follow if the expense is borne by assessments upon the properties benefited. Assume that the residents of a city who desire.water combine and furnish it to themselves, assessing upon members the exact cost of its supply, adding nothing for a profit, and distributing the burden proportionately to the benefit. That would be a co-operative project in which no one person would sell to any other person or warrant the water supplied. When a city furnishes water to a similar group, assessing upon their properties without profit the exact cost, it would seem that the transaction though performed by the city, is nevertheless equally co-operative. It was said in Quill v. Mayor (36 App. Div. 476) by Cullen, J., concerning the removal by a city of the ashes and garbage of residents: “ The city discharges the private duty of the members of the municipality which it has become difficult for those members to discharge themselves. The same is true of the furnishing of water to the residents. It was primarily a private enterprise.” \There being no element of profit involved, but only an assessment or taxation of the cost, it seems to me that a city water supply involves no sale of water to the residents furnished but only a service performed for the residents in lieu of their performance of that service for themselves. /^Therefore, I think there was no sale of water to this plaintiff.
If, however, we assume that the city sold water to the plaintiff, then the question remains whether the sale was such that, within the terms of section 96 of the Personal Property Law, a warranty impliedly accompanied the sale. There was such a warranty only if it were a case “ 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.” In the interpretation of this clause the Court of Appeals in Rinaldi v. Mohican Co. (supra, 74), through Andrews, J., has recently said: “ But we think further that such a purchase, where the buyer may assume that the seller has the [257]*257opportunity to examine the article sold,, unexplained, is also conclusive evidence of reliance on-the seller’s skill or judgment. We here limit the rule.” It has not been alleged that the plaintiff relied “ on the seller’s skill or judgment,” so that we must inquire whether as a matter of law upon the facts stated we have a case where “ the buyer may assume that the seller has the opportunity to examine the article sold.” In the instance of articles of food ordinarily sold the seller has the physical custody thereof so that inspection and examination may be had and the buyer “ may assume ” that they are made. Water supplied from a reservoir is never in the actual physical custody of the seller. Everyone knows that almost universally all such water is collected from running streams, rivers or lakes, which are themselves supplied by the drainage of wide areas of land; that such water runs over earth uncovered to the air, or percolates through soil; that it is collected for distribution in large ponds; that the soil through which or over which it passes cannot minutely be examined; that contamination of the water can be restricted but not prevented; that inspection alone will not reveal the presence of bacteria; that analyses of the great volume of moving water collected in the ponds cannot be made;\^hat an inspection, an examination, or an analysis of every drop of water furnished is beyond the power of the seller. Therefore, a buyer cannot “ assume that the seller has the opportunity to examine ” the water sold, so that invariably contamination and disease may be avoided. Consequently, I think the defendant did not impliedly warrant the waters furnished to this plaintiff./^
The order should be reversed and the demurrer sustained.
Cochrane, J., concurs; John M. Kellogg, P. J., dissents, with an opinion; Lyon, J., not voting, not being a member of the court; Kiley, J., not sitting.