I dissent. If we adopt, as seems inevitable, the theory that the water supplied by a municipal corporation for domestic purposes is sold as such by it to the consumers, I fail to comprehend how we can escape the application of the doctrine of implied warranty of wholesomeness. The complaint alleges that defendant furnished plaintiff water for drinking purposes. The buyer relies on the city, the seller, to furnish pure and wholesome water unless the city gives notice, as it may, for its protection, that the water supply is not warranted safe for consumption. The buyer himself does not select the article nor rely on his own skill and judgment. He takes what is offered by the city. The city, in a sense, in distributing water through its mains to consumers is not selling a commodity so much as rendering a public service. Its duty, apart from statute, is to exercise reasonable care in performing such service. But it cannot be denied that the water in the pipies is personal property and the subject of sale. (Ferens v. O'Brien, L.R. 11 Q.B. Div. 21.) The Personal Property Law (Sec. 96), therefore, applies to such selling and the implied warranty attaches thereto. (Rinadli v. Mohican Co., 225 N.Y. 70; 5 Cornell Law Quarterly, 479.) *Page 482
The order appealed from should be reversed and the order of the Special Term affirmed, with costs in this court and in the Appellate Division, and the question answered in the affirmative.