
    George M. Whitehouse, Appellant, v. The Staten Island Water Supply Company, Respondent.
    
      Duty of a water company to supply water to a customer—it is-bound to force the water into the customer’s house —the p>ractice of opening water taps in cold weather does not excuse it — a vis major is not a defense. '
    Where a private corporation, engaged in the business of furnishing for a consideration water to the inhabitants of a village, has for-.a number of years furnished at an annual rental water to the house of a resident of that village, and in May, 19Ó3, such resident pays and the corporation accepts the annual rental for the ensuing year, an implied contract is thereby created under which -it is the duty of the corporation during such ensuing year to furnish water to the resident’s house in the same manner as it has done during the preceding years.
    Such contract Contains an implied provision that the quantity of water supplied by the corporation shall be sufficient for the ordinary uses to which it is applied by the resident, and that the water shall be forced into the resident’s house '• irrespective of the altitude of such house above'the water main.
    ■ The corporation is not relieved from liability for a failure to maintain sufficient pressure in its niains to force the water into the resident’s house' during the winter months, because of a practice existing on the part of vits consumers to allow water taps to remain open during such months in order to prevent freezing, it appearing that one of the rules Of the water company was that “ faucets are not'to be.left open to prevent frosting of pipes in cold weather.” The vis mayor "is not an excuse for the non-performance of an absolute undertaking.
    Appeal by the plaintiff, George M. Whitehouse, from a judgment of the Municipal Court of the city .of New York, borough of Rich:mond, in favor of the defendant, entered on 'the 2d day of June, 1904, dismissing the complaint upon the merits.
    
      Howard R. Bayne, for the appellant.
    
      T. Hudlow Chrystie, for the respondent.
   Hooker, J.:

i The defendant was successful in the Municipal Court in an action brought by the plaintiff to recover damages for its failure to supply liim with water during the months of January and February, 1904. The plaintiff has appealed.

The defendant is a domestic corporation, duly organized under chapter 737 of the Laws of 1873 and the laws supplementary thereto •and amendatory thereof, for the purpose of supplying the inhabitants ■of the village of New Brighton with pure and wholesome water at .reasonable rates. Pursuant to the provisions of chapter 378 of the Laws of 1897 the village of New Brighton was consolidated into ;the present city of New York. For many years the plaintiff has •occupied as a dwelling house premises located on Hamilton avenue in New Brighton, and since the. consolidation has resided at the Same place, in what is now called the borough of Richmond in the -city of New York. For nearly twenty years prior to the 1st of May, 1903, the plaintiff was a customer, at his residence on Hamilton avenue, New Brighton, in the present borough of Richmond, of the water supplied by the defendant, and on or about .that day the plaintiff paid to the defendant the rate for which the defendant promised and agreed to supply him under the usual conditions with water for the ensuing year. During part of the months of January •and February, 1904, however, the defendant failed to supply the-plaintiff with water. During part of this time the supply was •quite insufficient, and during the balance he procured no appreciable -quantity of water from it, and, in order to obtain water for his necessary domestic uses, he was compelled to employ labor and .apparatus to draw water from a cistern into a tank in his house, and the plaintiff claims to be damaged to the extent of the fair value of the labor he employed. There is no dispute on the question that •during a considerable period of the month of January and a portion of the month of -February, 1904, the plaintiff failed to receive water-through the pipes from the, defendant’s supply, and no evidence was offered tending to contradict that of ■ the plaintiff, showing the measure of his damage. .

The principal question presented by thé record for the consideration of the court is whether under' the- contract existing between the parties to this action the defendant’s - failure to supply water to. the plaintiff during a considerable portion of the month of January and part of the month of February, 1904, was a breach of that contract, for which the plaintiff is entitled to recover as damages the-fair value of services rendered to the plaintiff in pumping water .from his cistern for his use. The defendant is a quasi-public corporation, chartered to-supply water to citizens of what was formerly New .Brighton., When the plaintiff moved into his present residence connection had been made between that residence, and the. defendant’s main in St. Mark’s place by means of a .service pipe,, and upon the plaintiff’s- taking up his residence there he paid to the defendant, the sum of money .it asked each year for the supply of water which he proposed to use, The rate was readjusted after he had lived there a short time for the reason that he thought-, he was. paying a larger rate than the regulations of the defendant called, for: One of the defendant’s agents, upon the basis of the established rates, took an inventory of what the plaintiff was using arid readjusted the rate. This rate was paid for many years, and on or about the 1st day of May, 1903, the plaintiff again paid to the-defendant and the latter received the annual rental. Under these. circumstances a contract, is implied between the plaintiff and tlin defendant corporation by virtue of which it undertakes to supply him with water. (McEntee v. Kingston Water Co., 165 N. Y. 27.) There must'necessarily be implied in this contract'a provision that; the supply by the defendant for which the plaintiff is . paying shall be sufficient for the ordinary uses to which the plaintiff has put it.. It is unquestioned that there has been a breach of that contract and the measure.of damages adopted by the plaintiff is not, nor.could,it: well be, questioned. The defendant sought to escape liability on the theory that the contract with the plaintiff was simply to supply-water at the junction of the service pipe and the water main in SL Mark’s place, and that because the plaintiff’s residence was orí an eminence and at an altitude considerably above other premises supplied from the St. Mark’s main, it was not liable provided it could show that water could have been obtained from the junction of the main and the service pipe. Such was not the contract between the parties. Were such provision properly to be incorporated into an implied contract between water companies and consumers it would, at the option of the water company, relieve it from all liability for its failure to force water into the houses of its consumers by showing that water could have been obtained in the street below ground in the water mains.. The implied contract in this case was to supply the plaintiff with water, no matter what the altitude of his house was above the water main ; for this had been the custom for many years and the defendant had been paid the rates demanded for supplying water at the house, and again in continuance of the contract on the 1st day of May, 1903, the defendant accepted payment of the full rate for the ensuing year, which implied a contract to continue the service as it had been rendered and that was that the plaintiff should have water in his house.

The only other defense relied upon by the defendant, namely, that owing to the excessive cold weather the defendant had been unable to maintain its usual pressure on account of the fact that the watertaps of consumers were generally open and allowed to remain so to keep up a circulation of water, for the purpose of preventing freezing is not sufficient to relieve the defendant of liability. The action is not one of negligence, but to recover damages for a breach of a contract, and where a contract is absolute the vis mayor is not an excuse for non-performance. (Harmony v. Bingham, 12 N. Y. 99; Ward v. H. R. B. Co., 125 id. 230.) It is to he observed that one of the rules and regulations of the defendant company incorporated into the contract between it and its consumers and numbered section 12, on the reverse side of the water receipts, reads as follows: “ It is mutually understood and agreed that faucets are not to be left open to prevent frosting of pipes in cold weather, nor to obtain cool water in warm weather.” Such a regulation appears on its face to be reasonable, and it is clear therefrom that the defendant had adopted the same so that it might prevent the occurrence of such a condition as it now claims was accountable for the failure of the plaintiff to. obtain water "during this cold weather. Our opinion is that although the circumstance is not in any event a defense to this action, the defendant should not be allowed here to take advantage of its failure to enforce one of its own regulations, enacted for the.purpose of preventing the occurrence cómplained of.

For these reasons the judgment should be reversed and a new trial granted, costs to abide the event.

Hirsohberg, P. J., Bartlett and Woodward, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to. abide the event.  