#### WAINWRIGHT et al. v. QUEENS COUNTY WATER CO.

(Supreme Court, General Term, Second Department.

May 14, 1894.)

1. Pleading—Averment of Conclusions.

In an action against a water company for damages for the burning of plaintiffs’ building, in consequence of defendant’s failure to provide an adequate supply of water, according to its contract with the fire district of which plaintiff was a resident, an averment 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,’’ is a conclusion of the pleader, where the agreement did not name any individual taxpayer, or state that the agreement was for their benefit.

3. Contracts—Action by Person not a Party.

A taxpayer of the fire district cannot sue on such contract, since a person not a party can sue on a contract only when it is beneficial to him, and was intended by the contracting parties to have been for his benefit.

Appeal from special term, Queens county.

Action by William Wainwright and others against the Queens County Water Company. From an interlocutory judgment entered on an order overruling a demurrer to the complaint, defendant appeals. Reversed.

The complaint, after setting forth the incorporation of the defendant, alleges that on April 3, 1887, the board of supervisors of Queens county, pursuant to law, established a fire district in the unincorporated village of Roekaway Beach, and authorized such district to purchase apparatus for the ex-tinguishment of fires, and to procure for like purposes a supply of water through hydrants to be set, maintained, and supplied by the defendant at the *988annual rent or sum for the use of such hydrants of $2,000, to be paid to said defendant upon condition that it should maintain a pressure in its pipes supplying such hydrants at all times so as to throw a stream of water 40 feet in height, through a one-inch nozzle, at a hydrant to be set at the corner of Bemsen avenue and the Central boulevard, in said district. That such conditions were accepted by the defendant, and an agreement entered into between it and said fire district, whereby defendant bound itself for the term of 10 years to supply water to said district by the means, for the consideration, and upon the condition aforesaid, and said district agreed to pay said sum of $2,000 annually, provided the conditions and requirements of said contract were fulfilled. That said district organized and equipped a fire department, and purchased hose, hose carriage, and necessary appliances therefor, and duly performed the agreement upon its part, and annually paid over to the defendant the sum of $2,000, which was raised by taxation upon the district for the purpose aforesaid. That plaintiffs were residents of and taxpayers in said district, and were taxed and had paid their taxes for the purpose of carrying out said agreement, and that the district was established, and said agreement entered into with the defendant, for the benefit of the residents and taxpayers of said district, and for the benefit of the plaintiffs, all of which the defendant knew when it entered into said agreement, and that the same was entered into by defendant in view of that fact. That on September 13, 1892, buildings owned by the plaintiffs within said district were destroyed by fire. That the fire department of said district were present at said fire, and used every means to extinguish it;' but were unable so to do, because of an inadequate supply of water. That such inadequate supply of water was the result of a failure on the part of defendant to maintain the pressure upon its pipes which it had agreed to supply and maintain, and that, if such pressure had been supplied and maintained at the time of the fire, the supply of water would have been adequate, and the fire would have been extinguished. That, by reason of the failure of defendant to perform its agreement, the buildings were destroyed, and plaintiffs suffered damages to the amount of $30,000, for which sum judgment was demanded against the defendant. Defendant demurred to the complaint on the ground that the facts stated did not constitute a cause of action.

Argued before BROWN, P. J., and DYKMAN and PRATT, JJ.

Jesse Johnson, for appellant.

Dailey, Bell & Crane, for respondents.

BROWN, P. J.

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 *989forth in the second and third paragraphs of the complaint. No individual taxpayer is named in the agreement, nor is it therein stated to be for their benefit, or' that it wTas intended for their benefit; nor does the defendant agree to extinguish fires. And it is clear, I think, that the allegation is a conclusion solely from the fact that its performance by the defendant would inure to the benefit of the plaintiffs and other taxpayers of the district. This is not sufficient to bring the case within the rule that, when a promise is made by one person for the benefit of another, it may be enforced at the suit of the latter. It would serve no useful purpose to renew the discussion that has existed upon this rule since the decision of the case of Lawrence v. Fox, 20 N. Y. 268. Many cases in which that principle has been applied seem to be in conflict with the rule that, in an action upon a contract, privity of contract must exist between the parties. But where the third party was specifically named in the contract, or the promisor received money or property which he agreed to pay over to the third party, who, by adopting the contract, became a beneficiary thereunder, or where the promisee was under a legal obligation to the third person which the promisor assumed as his own, and thus connected himself with the transaction, privity of contract by adoption was spelled out. But it is now settled that, to bring a case within the rule, the contract must not only be beneficial to the third party but it must have been intended for his benefit by the contracting parties. Aetna Nat. Bank v. Fourth Nat. Bank, 46 N. Y. 82; Garnsey v. Rogers, 47 N. Y. 233; Vrooman v. Turner, 69 N. Y. 280. In many cases where, as in the one before the court, the performance of the agreement would be beneficial to third persons, recoveries have been denied, because the agreement was not specially intended for the benefit of those suing thereon. Turk v. Ridge, 41 N. Y. 207; Merrill v. Green, 55 N. Y. 270; Simson v. Brown, 68 N. Y. 355. This case cannot therefore, I think, be brought within the rule applicable to promises made for the benefit of third parties.

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*990troversy. It does not support an action on contract, and is applicable only to actions for wrongs. It was first stated by Judge Selden in Weet v. Village of Brockport, 16 N. Y. 161, note, as the principle he deduced from English authorities upon which rested the liability of municipal corporations for the misfeasance and nonfeasance of its officers in relation to the duties with which they were charged as agents of the corporation. Whether it was the correct rule upon which to place municipal liability for such acts is of no importance. It is important, however, that its application was made to the liability of officers charged with a public duty. It was applied in the cases against contractors for keeping the canals of the state in repair, of which the leading authority is Robinson v. Chamberlain, 34 N. Y. 389, and it was held there that one who, by contract with the state, assumes the duties and is invested with the powers of a public officer, is liable, for a neglect to perform such duties, to a person injured thereby. Those cases were all actions for wrongs. The opinions in Robinson v. Chamberlain all placed the defendant’s liability on the ground of neglect of a public duty, and in Bennett v. Whitney, 94 N. Y. 302, Judge Finch said the liability was for negligence by an officer in the performance of a public duty. In Little v. Banks, the state (Code Civ. Proc. § 211) made it the duty of the state reporter, and other officers named, to contract for the publication of the reports of the court of appeals with a person who should agree to publish and sell the reports on terms most advantageous to the public. The publication and sale of the reports was thus by the legislature made a public duty; and the person who undertook, by a contract with the state officers, to publish the reports, was thereby performing a public duty, precisely the same as if it had been specifically imposed upon him by act of the legislature, and accepted by him. The defendants in the case cited, therefore, fell within the principle stated, and were liable, not on the ground that there was privity of contract between them and the plaintiffs, but for official misconduct. But the present case presents no public duty, and the defendant, under its contract, has not undertaken to perform any.

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 *991citizens with light, water, fire apparatus, hospitals, or any of those conveniences which to so great an extent improve the sanitary condition of the community and are beneficial to the inhabitants. The state delegates such powers as privileges. It does not impose them as duties, and, while highly beneficial to the communities, they are not regarded as beneficial to the municipality in its corporate character. The power to perform acts or to maintain structures or systems for the supply of water and light is not equivalent to a duty to perform, and no obligation rests upon the municipality in this regard to do the thing it has the power to do, and hence the authorities are uniform that the failure to maintain waterworks system in municipalities in such a condition that it might be determined as a fact that .a fire would have been extinguished if the water supply had "been sufficient does not create a cause of action against the municipality in favor of the aggrieved party. Wheeler v. Cincinnati, 19 Ohio St. 19; Vanhorn v. City of Des Moines, 63 Iowa, 447, 19 N. W. 293; Fisher v. City of Boston, 104 Mass. 94; Taintor v. City of Worcester, 123 Mass. 311; Edgerly v. Concord, 62 N. H. 8; Jewett v. New Haven, 38 Conn. 368; Torbush v. City of Norwich, 38 Conn. 225; Grant v. City of Erie, 69 Pa. St. 420. While I am not aware that the precise question decided by the authorities cited has been determined in this state, it has been decided by our courts, in cases quite analogous, that for the wrongdoing of the agents of the departments of charities and corrections and the water department the municipality is not liable. Maxmilian v. Mayor, etc., 62 N. Y. 160; Smith v. City of Rochester, 76 N. Y. 506, and cases cited. The cases of injuries occurring from defective highways have no application to the question under discussion, and need not be referred to.

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. *992219, 9 S. E. 673; Foster v. Water Co., 3 Lea, 42; Ferris v. Water Co., 16 Nev. 44; Nickerson v. Hydraulic Co., 46 Conn. 24; and to the same effect is Atkinson v. Water Works Co., 2 Exch. Div. 441. I do not see that the relation of the individual taxpayer to the company that agrees to supply water is any different than it is towards the person who sells the fire engine or the hose to the fire district. The power of the district to contract in all cases is the same, and derived from the statute. But if, from the bursting of a defective hose or the breaking down of a defective engine, the extinguishment of a fire was made impossible, the owner of the destroyed property would have no right of action, against the vendor of those appliances. Longmeid v. Holliday, 6 Eng. Law & Eq. 562; Davidson v. Nichols, 93 Mass. 514; Losee v. Clute, 51 N. Y. 494; Coughtry v. Woolen Co., 56 N. Y. 127. Privity of contract is an essential element to an action founded on a breach of contract, and, whether the action for damages resulting from the breach be in form on contract or for a wrong, it can only be maintained by a party to the contract. There is, in my opinion, no principle or authority upon which this action can be maintained, and the judgment must be reversed, and the. demurrer sustained. All concur.