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D supplied the City of Rensselaer with water. This water was used for various things, including fire hydrants. P owned a building in Rensselaer. This building burned down. The nearest fire hydrants were not able to produce sufficient water at an appropriate pressure to save the building. D was under contract with the city to adequately provide this water. P sued for damages caused by reason of the failure of D to 'fulfill the provisions of the contract between it and the city of Rensselaer.' D made a motion, in the nature of a demurrer, to dismiss the complaint. D's motion was denied at Special term. The Appellate Division reversed by a divided court.

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