The complaint in this action alleges that the defendant is a municipal corporation, authorized by its charter to construct, operate and maintain a water plant for the supplying of pure and wholesome water to its inhabitants; that the plaintiff *258occupied certain premises with his family, and that the defendant failed in its obligation to supply pure and wholesome water; that, on the contrary, it supplied water contaminated with typhoid fever germs; that the plaintiff and his family drank the water thus supplied by the defendant, and that typhoid fever resulted, to the damage of the plaintiff in the sum of $10,000. The first cause of action proceeds upon the theory of negligence, while the second alleges an implied warranty on the part of the defendant of the quality of the water, and a breach of this implied warranty. The defendant demurs to the second cause of action, and the learned court at Special Term has overruled the demurrer (108 Misc. Rep. 579), the defendant appealing from the order.
If the defendant is maintaining a public nuisance there is little doubt that the plaintiff, suffering special damages, would be entitled to recover such damages, without reference to the question of negligence. No question is here raised as to the cause of action resting in negligence, but the one question is presented whether the municipality, maintaining a water plant for the purposes of sewer sanitation, fire protection and domestic use, rests under the harsh rule which prevails in respect to foods sold for immediate consumption.
It seems clear to me that there is no such liability assumed by a municipal corporation in respect to a water plant, designed primarily to perform a governmental or police function of guarding against fires. It is not to be doubted that in the purveying of water to private consumers for domestic purposes the municipal corporation is occupying the position of a public service corporation, and that it owes the duty to its customers to use reasonable care in the performance of that service, but it is not liable in a civil action for failing to protect the individual from loss by fire, caused through a failure to provide sufficient water (German Alliance Ins. Co. v. Home Water Co., 226 U. S. 220, 227), and I do not understand that the rule sought to be applied here goes to the extent of holding that every vendor of a merchantable product, designed for human consumption, impliedly warrants the quality. The rule, as I understand it, is that “ where the vendor is not the manufacturer, and the purchaser knows this fact, in the absence of proof of an express warranty or of fraud or deceit upon the part of the seller, he is *259not responsible for latent defects,” or, as the court says in American Forcite Powder Manufacturing Co. v. Brady (4 App. Div. 95, 97), “ a dealer does not impliedly warrant against latent defects, except where the sale of the article by him is in and of itself legally equivalent to a positive affirmation that the article has certain inherent qualities inconsistent with the claimed defects, as in the case of the sale of provisions for domestic use.” In the very recent case of Race v. Krum (222 N. Y. 410, 413), where the court had under consideration a case of tyrotoxicon poisoning, through eating ice cream at a drug store, it was said that “ as to the second contention, I am of the opinion the trial court did not err in instructing the jury that when defendant sold the cream to plaintiff he impliedly warranted it was wholesome and fit to eat. In this connection, however, it must be borne in mind that we are not dealing with the liability of hotel proprietors, restaurant keepers, dining-car managers, or people engaged in business of that kind, but are considering solely the liability of a dealer who makes or prepares the article that he is selling. As to such dealer we believe the instructions were proper. The general rule established by the weight of authority in the United States and England is 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.” But this is a special rule,, applied to retail dealers in articles of food as to which they have the better opportunity of knowing and judging. “ The seller,” say the court, “ has an opportunity which the purchaser does not of determining whether the article is in the proper condition to be immediately consumed. If there be any poison in the article sold, or if its condition render it unfit for consumption, and the consumer be thereby made ill, some one must of necessity suffer, and it ought not to be the one who has had no opportunity of determining the condition of the article, but rather the one who has at his command the means of doing so.”
It is conceded that this is a harsh rule of responsibility, and it ought not to be extended beyond the limits already defined. It obviously does not apply to the cases mentioned by the court in the above quotation, and why should a municipal corporation be held to a higher degree of liability than would attach to the *260proprietor of a hotel or restaurant, or the manager of a dining-car service? The municipality, it must be assumed, in selecting its source of supply, procured water which was up to the requirements of its statutory obligations. Having originally procured a proper source of supply, the presumption would continue, until there was something to put it upon notice, that the quality remained pure and wholesome. At least it would seem that the corporation was required only to exercise that reasonable degree of care to discover impurities endangering life which the importance of the service would reasonably suggest; and to apply the harsh doctrine applicable to retail dealers in food stuffs for immediate consumption is for the courts to usurp the prerogatives of legislation, where its manifest duty is merely to declare the law as it is. “ The general rule as to an implied warranty in the sale of goods,” say the court in Coleman v. Simpson, Hendee & Co. (158 App. Div. 461, 463), “ is that, unless the vendor is the producer or manufacturer of the articles, there is no implied warranty against latent defects, even if the vendor knows the purposes for which the goods are bought.” The city of Mechanicville is not the producer or manufacturer of the water which it distributes; it is merely the collector of a natural product, which it distributes through its pipes and mains. Its primary purpose is fire protection, and while it has no right to disregard the health of the community, it seems clear to me that until there is some neglect of ordinary care, commensurate with the responsibility of service undertaken, there is no such liability as is attempted to be asserted in the second cause of action.
The order appealed from 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.