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Ducts for Cables Used to Convey Electricity for ManhattanBronx Subway Are Part of Construction, Not of Equipment, Though Built Apart From Subway Wall.

OPINION OF COUNSEL.

NEW YORK, October 2, 1907. TRAVIS H. WHITNEY, Esq., Secretary, Public Service Commission for the First District:

DEAR SIR-I return herewith letter of Mr. Rice, chief engineer, of August 28th, transmitted to me with your letter of September 4th. Mr. Rice asks for advice as to whether the ducts not forming part of the walls of the subway are to be treated as part of the construction or as part of the equipment under Contract No. 1.

When the contract for the construction and operation of the Manhattan-Bronx subway was made, the motive power to be used therein had not been determined, and was left open for further consideration, until late in 1901, when it was decided to use electricity and that the cables used for conveying it should be carried through ducts, the main part of which were built as part of the subway wall, the subway being widened about eight inches to provide for these conduits. At some parts of the road, however, it was impracticable to build these ducts in the side walls, and they were in some places built over the roof of the subway and in others, as in the Park avenue tunnels, under the floors of the subway, all forming a continuous system.

The question whether ducts should be charged against construction has already been litigated, and was carried to the Court of Appeals (175 N. Y. 470), which decided, on the opinion of Judge Hatch below (80 App. Div. 210), that such work constituted construction and not equipment.

The argument in the Appellate Division was based largely on the question of the character of the ducts which were built as part of the subway wall, and the court confined itself almost entirely to the consideration of those ducts and did not consider the character of the ducts about which Mr. Rice now asks advice. I think, however, that they are also covered by this decision, for the Corporation Counsel conceded on the argument that the entire duct system was one thing or the other, either construction or equipment. I understand from Mr. Rice that these ducts are constructed in almost as permanent a fashion as those in the walls and can only be removed by doing considerable damage to the subway structure. It would manifestly be the cause of great difficulty if, on the termination of the lease, part of the duct system should be treated as construction and part as equipment, to be removed by the subway company or paid for by the city. These ducts form a complete system, and are all of a permanent character. They all, in my opinion, form part of the construction and should be charged against that account.

The claim that part of this system constitutes equipment would, moreover seriously prejudice the action instituted by the Rapid Transit Board to restrain the Interborough Rapid Transit Company from selling the surplus electricity conveyed by means of cables through these ducts, on the ground that as they belong to the city, the company is not at liberty to use them for purposes other than for subway purposes.

Yours very truly, (Signed)

ABEL E. BLACKMAR,
Counsel to the Commission.

The contract also contains a covenant which is in part as follows (page 159): "It is the intent of this agreement that in addition to indemnifying the city against all claims for damages, the contractor shall also be liable to the owners of adjacent or abutting property or of buildings or structures thereon, and to all tenants of or persons in such buildings or structures, for all physical injuries to property or person which may be occasioned by the work of construction, even in cases where such owners, tenants or other persons have no legal claim against the city for such injuries. In addition to all other liability for injuries to

adjacent or abutting property or to buildings or structures thereon or for injuries to persons, the contractor shall fully meet and duly pay the amount of any loss or damage that any abutting or other owners or other persons may suffer by reason of any physical injury to property or person occasioned by any act or omission of the contractor or of any subcontractor or other person employed on the work."

1. I think that under the foregoing provisions of the contract the contractor has undertaken that the work covered by the contract involves no danger to buildings, and that if support of adjacent buildings becomes necessary in the prosecution of his work, it is the contractor's duty to support the buildings and to procure the license from the adjacent owner referred to in the building ordinance above mentioned.

2. The obligation of the city to secure and assure to the contractor the right to construct the railroad free from right, claim or other interference whether by Injunction, suit for damages or otherwise, on the part of owners, abutting owners or other persons, does not require the Commission to put the contractor into physical possession of abutting property for the purpose of underpinning the same, but requires the city to protect him in the performance of his work against injunction, suit for damages or otherwise.

3. Under the case of March v. The City, 69 App. Div. 1, the contractor is Justified in entering upon the property; and the courts would not enjoin such entry, but would leave the owner to his action for damages if there has been a technical trespass.

4. In so far as these clauses in the contract above cited are for the benefit of the property owner or tenant, a refusal on their part to permit the contractor to protect the property would, I think, operate as a waiver.

5. The provisions of the Building Code (section 22, chapter 15, of the ordinances of the city of New York) seem to be applicable to this situation, and in effect are said so to be by the per curiam opinion in the March case. Recourse may, therefore, be had under the provisions of the Building Code to the Commissioner of Buildings, to secure the safety of the building at the expense of the party whose duty it is to keep the same safe and secure. Very truly yours, (Signed) ABEL E. BLACKMAR, Counsel to the Commission.

Public Service Commission for the First District:

October 17, 1907.

GENTLEMEN.-I am in receipt of your communication, dated October 16, submitting to me a copy of a letter from the chief engineer's office and also one from the chief engineer of the Degnon Contracting Company, and a copy of the opinion of the counsel for the contractors.

I do not see how any good purpose can be subserved by continuing a discussion regarding the rights and duties of the contractor and the city under the contract. I was familiar with and had examined the cases referred to and the opinions of the Corporation Counsel and the counsel to the board, which are quoted at length in the opinion of the contractors' counsel, and took them into consideration when I rendered my opinion. It is true that no city department can interfere with or control the work of the subway construction carried on under your supervision as successor to the Board of Rapid Transit Railroad Commissioners, and that the authority of the Commission is paramount in all matters of construction and operation of the subways. Nevertheless, the Commission has no means at its command of placing the contractor in the physical possession of abutting private property. The contractor construes the contract as imposing a duty upon the city of placing him in possession of the property. I have pointed out an ordinance of the city vesting in one of its departments power so to do, but the contractor seems to think it should be accomplished in some other way. If he is right that the city has assumed this duty, I do not understand why he hesitates to appeal to the department of the city which has undoubted power in the premises. The paramount power vested in this Commission over control of subway construction, is no objection to the building department acting if this Commission so desires. If the contractor is right that the city fails in its duty, the contract by its terms provides his exclusive remedy, namely, a claim for any damages which he may suffer through such default on the part of the city.

(Signed)

Yours truly,
ABEL E. BLACKMAR,
Counsel to the Commission.

Subway Construction- Access to Buildings for the Purpose of

Shoring.

OPINION OF COUNSEL.

October 8, 1907.

TRAVIS H. WHITNEY, Esq., Secretary, Public Service Commission for the First District:

DEAR SIR.I am in receipt of your letter of September 24 transmitting a communication of Mr. Rice, chief engineer, which forwarded to you a letter of H. C. Sanford, chief engineer of Degnon Contracting Company, the contractor for Contract 9-0-2, Brooklyn loop, Centre street, from Pearl to Canal streets, referring to an obstruction to access to property, Nos. 174 and 176 Canal street, needed for necessary shoring of the building. Mr. Sanford says that tenants refuse access to the property and that one Max Weil, who appears on the list as owner, gives no re sponse to letters, and that the work of the contractors is hampered by failure to get access to the building. Mr. Sanford also states that under his contract the city covenants to secure the right to construct a railroad free from the interference of abutting owners and asks the Commission to take the necessary steps so that the contractor may not be hampered by having access denied along the route where necssary for shoring purposes. Mr. Rice also intimates that some doubt exists as to the limits of jurisdiction of the Public Service Commission and of the building department, and that it is desirable that the authority of the Commission be definitely determined.

1. The city's covenant referred to by Mr. Sanford is in words as follows (page 162 of the contract):

"The City hereby stipulates and covenants to and with the contractor that the City will secure and assure to the contractor so long as the contractor shall perform the stipulations of this contract the right to construct and to operate the

railroad as prescribed in this contract, free of all right, claims or other interference, whether by injunction, suit for damages or otherwise on the part of any owners, abutting owner or other person."

Among the stipulations which the contract undertakes to perform are these (page 153):

The contractor admits and covenants to and with the City that the plans and specifications and other provisions of this contract for construction, if the work be done without fault or negligence on the part of the contractor, do not involve any danger to the foundations, walls or other parts of adjacent buildings or structures. and the contractor shall at his own expence make good any damage that shall in the course of construction be done to any such foundations, walls or other parts of adjacent buildings or structures or to navigaton. But this covenant is not to be construed as applying to foundations, walls or other parts of buildings erected upon private property through which a railroad or any station entrance or approach shall be constructed.'

And at page 156, as follows:

"The contractor shall obey any order of the Engineer to support or secure adjacent property or any surface or structure thereon, but the contractor shall not be relieved of responsibility either by compliance with any such order or by any failure or omission of the Engineer to give any such order or to give notice of any danger."

The Building Code also provides in respect of the support of buildings as follows (chapter 15, the Building Code, section 22):

Whenever an excavation of either earth or rock for building or other purposes shall be intended to be, or shall be carried to the depth of more than ten feet below the curb, the person or persons causing such excavation to be made shall at all times, from the commencement until the completion thereof, if afforded the necessary license to enter upon the adjoining land, and not otherwise, at his or their own expense, preserve any adjoining or contiguous wall or walls, structure or structures, from injury, and support the same by proper foundations, so that the said wall or walls, structure or structures shall be and remain practically as safe as before such excavation was commenced, whether said adjoining or contiguous wall or walls, structure or structures, are down more or less than ten feet below the curb. If the necessary license is not accorded to the person or persons making such excavations, then it shall be the duty of the owner refusing to grant such license to make the adjoining or contiguous wall or walls, structure or structures, safe, and support the same by proper foundations, so that adjoining excavations may be made, and shall be permitted to enter upon the premises where such excavation is being made for that purpose when necessary. If the person or persons whose duty it shall be to preserve or protect any wall or walls, structure or structures from injury shall neglect or fail to do so after having had a notice of twenty-four hours from the Department of Buildings, then the Commissioner of Buildings may enter upon the premises and employ such labor and furnish such materials and take such steps as in his judgment may be necessary to make the same safe and secure or to prevent the same from becoming unsafe or dangerous, at the expense of the person or persons whose duty it is to keep the same safe and secure.' Very truly yours,

(Signed) ABEL E. BLACKMAR, Counsel to the Commission.

Subway Contruction Duty of Contractor to Support Structure on East Side of Mott Street, Although Erected After Making Contract.

OPINION OF COUNSEL.

November 4, 1907. TRAVIS H. WHITNEY, Esq., Secretary, Public Service Commission for the First District:

DEAR SIR.I duly received your letter of September 23, transmitting a communication from Mr. Rice, chief engineer, dated September 20, as to underpinning the new buildings at the northwest corner of Mott and Delancey streets. This is in the portion of the Brooklyn loop lines to be built in the Delancey street extension, known as Contract 9-0-2, let to the Bradley Contracting Company.

The duty of the contractor to support abutting structures and the obligations which he has assumed to adjacent property owners have been referred to in my opinions of October 8 and October 17, in the matter of No. 174 Canal street.

The question now arising is whether the obligations referred to exist under the contract as to new structures in a new street, i. e.. such as were not there when the contract was let and signed. In view of the following provisions of the contract I am of the opinion that the contract must apply to these new structures, and that the contractor is under obligation to support them in pursuance of the contract obligations.

The obligation of the contractor is to protect and support all buildings and other structures, including foundations (page 15), and including underpinning, wherever necessary, of all buildings affected or interfered with during construction of the railroad (page 17); as to excavation, contractor is to take special precaution where there is additional pressure due to the presence of buildings or other structures

(page 56). Also when passing specially heavy buildings which, by their construction or position, might bring a great pressure upon the trenches, the right is reserved by the board for the engineer to direct that such buildings be underpinned (page 57). The contractor also covenants that his work, if done without fault or negligence on his part, does not involve any danger to foundations, walls or other parts of adjacent buildings or structures, and that he will make good any damages that shall in course of construction be done to foundations, walls or other parts of adjacent buildings or structures (page 155); and the contractor also undertakes to obey any order of the engineer to support or secure adjacent property or any surface or structure thereon, but he is not relieved of responsibility either by compliance with an order of the chief engineer or an omission of the chief engineer to give it or give notice of danger (page 157). Contractor also assumes a very extensive responsibility for all physical injuries to the property of abutting owners occasioned by any act or omission of himself or of any subcontractor or person employed on the work. The contract runs over a period before completion of at least twenty months.

It does not seem reasonable to assume that in a contract to extend over two years in a crowded city street that the obligations of a contractor to abutting property owners and to adjacent property and structures can be limited to those in position at the time the contract is entered into, and that the constant changes in condition of property in the ordinary course of business and improvement for so Long a period while the work is in process are to be entirely ignored and the owners' rights completely passed over. I have advised you that in my opinion new water pipes put in by the city itself, after the letting of a loop contract and requiring to be supported by the contractor as a subsurface structure, should be deemed to be extra work, for which an additional allowance may be proper, but the city is a party to such contract and must be deemed to have expressed its intention as to its own rights and obligations.

In this case, however, as to abutting property owners, obligations are undertaken by the contractor for the benefit of third parties as a class who are not parties to the contract, and it would seem to me that the obligation which the contractor has assumed must include every person of that class, not as of the time the contract is signed, but of the time when his rights and property are touched in the prosecution of the contract.

I think, therefore, that the obligation of the contractor is to underpin and support any structures which may be found to need such support, new or old, at the time when such support becomes necessary by reason of the prosecution of his work. If I am in error on this point the contractor has his remedy under the terms of the contract. In the new Fourth avenue contracts, I have inserted a clause removing this uncertainty.

Very truly yours. (Signed)

ABEL E. BLACKMAR,

Counsel to the Commission.

Occupation of Street by Structure Containing Boilers and Compressed Air Machinery Necessary for Use in Subway Construction- Power of the Commission to Grant Permit Therefor.

OPINION OF COUNSEL.

Public Service Commission for the First District:

July 31, 1907.

GENTLEMEN.I have received your communication enclosing a demand by the New York Dock Company that the structure containing boilers and compressed air machinery in Furman street, and claimed to be a nuisance and to be there without right, should be removed.

I requested Mr. Rice, the chief engineer, to report as to the character and situation of the structure, and have received from him a letter dated July 29th, stating that it was authorized under Permit No. 185, granted November 23, 1906, which was valid for the year 1906, but was lately extended to October 1, 1907, and also stating that it would be unwise to order the removal of the structure before October 1st, because it would be required to provide the air supply needed to complete the ventilating shaft now under construction on Joralemon street.

I recently read in the papers that the New York Dock Company had applied for a writ of peremptory mandamus directed to the officials of the city, commanding them to remove the structure as an encroachment upon the street and a nuisance, and that the same had been argued before Mr. Justice Scudder, of Kings county, and decision reserved. I communicated with the Hon. James D. Bell, of Corporation Counsel's office for the borough of Brooklyn, who confirmed this account. Colonel Bell informed me that he had opposed the granting of a mandamus.

The right of the Board of Rapid Transit Railroad Commissioners to issue permits to the contractors to occupy portions of the street has recently been before the Appellate Division of the Supreme Court, in the Second Department. In that case the plaintiff was a subcontractor under the Board of Rapid Transit Railroad Commissioners, and with the consent and pursuant to the permit of such board occupied certain streets in Brooklyn which crossed the street under which the construction was progressing. The occupation of such streets was without the permit

of the Borough President or the Commissioner of Public Works. These latter officials threatened to remove the plaintiff from the cross streets and the plaintiff brought an action to restrain such removal, claiming a right to occupy the same under the authority of the permit granted by the Rapid Transit Railroad Commissioners. The motion for injunction was granted at Special Term, and the Borough President and Commissioner of Public Works appealed. On July 23d the Appellate Division handed down a decision affirming the order and finally deciding in favor of the validity of permits granted by the Board of Rapid Transit Railroad Commissioners for the occupation of streets and cross streets by contractors and subcontractors, so far as the same may be reasonably necessary to the prompt and proper progress of the work. The power to grant such permits has devolved upon this Commission as successor of the Board of Rapid Transit Railroad Commissioners.

I retain the papers in this matter in my hands, in order that I might act thereon if occasion should require. Yours very truly,

(Signed)

ABEL C. BLACKMAR,
Counsel to the Commission.

Relocation of Water Pipes on Permit Issued by the Commission But Not Submitted to the Department of Water Supply for Approval.

OPINION OF COUNSEL.

August 6, 1907. TRAVIS H. WHITNEY, Secretary, Public Service Commission for the First District: SIR.I am in receipt of your letter of July 24 transmitting a copy of communication of the Hon. John H. O'Brien, Commissioner of Water Supply, etc., requesting the Public Service Commission for the First District to take up with the Westchester Lighting Company the question of the removal of its main on Broadway, between Two Hundred and Thirtieth and Two Hundred and Forty-second streets, on the ground that the same was laid without the approval of the Commissioner or the Borough President, and because the space is soon to be needed for the placing of a new 12-inch water pipe, and asking also that hereafter all contractors working under the Public Service Commission be required to submit their plans for approval to the department of water supply under section 469 of the charter, where it becomes necessary to shift water or gas pipes or other subsurface structures.

Upon investigation of the facts by your chief engineer and by Commissioner Bassett, as reported in writing and transmitted also to me by you, it appears that the Westchester Lighting Company's pipe was relaid by a contractor for the building of superstructures for a rapid transit railway in that street under the terms and obligations of a contract between the contractor and the city, acting by the Board of Rapid Transit Railroad Commissioners, the pipe being a subsurface structure in the line of improvements and necessary to be relocated at the contractor's expense by the terms of this contract.

It was so relocated without a permit from the department of water supply, because under his contract with the city he was authorized and was bound to do it, and the corporation counsel and the courts have held that a permit of the Board of Rapid Transit Railroad Commissioners is sufficient authority for a contractor to proceed with work and because the permit of the Commissioner of Water Supply is unnecessary.

I am also informed by the chief engineer's report that the relocation and placing of the Westchester Lighting Company's pipe was with the knowledge of the officials of the department of water supply, and that there is sufficient room in the street for the placing of the proposed 12-inch water main without a removal of the gas main.

Under the circumstances I cannot see that the contractor or this board is under a duty to take up and relocate the gas pipe complained of, and I cannot advise you to undertake to do it.

The request of the commissioner that hereafter contractors working under the Public Service Commission be required to submit their plans for approval to the department of water supply under section 469 of the charter, when it becomes necessary to shift subsurface structures, introduces to this board the same question which was often brought to the attention of the Board of Rapid Transit Railroad Commissioners, whether in prosecution of its duties under the Rapid Transit Act and contracts made thereunder permits of various city departments are necessary to a use of the streets or to opening the same by the board or its officers or contractors.

The question was finally submitted to the Corporation Counsel and by the opinion of Mr. Delany, dated June 19, 1906, addressed to the Borough President, to be found in Vol. 7, page 4226 of the Rapid Transit Board's minutes, it was held that that board alone had control and that a permit from such board is all that is required to enable a contractor to proceed, and it was recommended to the Borough President that for the convenience of his office an arrangement be made whereby the Board of Rapid Transit Railroad Commissioners should notify the Borough President's office of each permit issued. The same question substantially has been in various forms also before the courts, and most recently in the case in the Second

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