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Department, Appellate Division, not yet reported, brought by the Rapid Transit Subway Construction Company against Bird S. Coler as president of the borough of Brooklyn, to restrain the removal of the plaintiffs from cross streets occupied by them for the purposes of a construction contract without the permit of the borough President.

In this case the court said: "It is apparent

that it was the intent of the Legislature to confer upon the Commission all of the necessary powers properly to construct the subway, and this without concurrent action of the ordinary municipal authorities, except where such action was specifically required by the act. The power to grant a valid permit to a contractor or subcontractor to occupy an adjacent part of cross streets where such is necessary in the prosecuting of the work is ** * an incidental power which the Commission possesses

under the Act."

In regard to the placing of subsurface structures in the line of construction and necessary to be relocated by a contractor under such a contract made by the city pursuant to the Rapid Transit Act, I think the authority of the Commission is final and that this board or its contractor is not required by law to submit the plan of such relocation to the department of water supply, but it would seem well that the practice be observed of notifying the department of water supply of any proposed action by the contractor and of regarding, as far as may be practicable, its wishes in the matter. Yours very truly,

(Signed)

ABEL E. BLACKMAR,
Counsel to the Commission.

Vaults in Fulton Street, Brooklyn, Taken by Condemnation for Subway Purposes - Rights of Abutting Owners as to Restoration.

OPINION OF COUNSEL.

Public Service Commission for the First District:

November 29, 1907.

GENTLEMEN. I have a letter of Mr. Norton, dated October 16, 1907, transmitting copy of a letter from Messrs. Jones, McKinny & Steinbrink, of October 15, in which letter they, as attorneys for the Sterling Piano Company, the owner of No. 518 Fulton street, Brooklyn, complain that the subway contractors, building the subway under Fulton street, have refused to restore the vault maintained by the Sterling Piano Company under its premises, and threatening that if such restoration is not made to its satisfaction, it will have the work done and hold the city responsible for the cost.

The matter of vaults under the sidewalks was before the Rapid Transit Board in a number of cases. There is a difference in the legal situation between Manhattan and Brooklyn, due to the fact that in Manhattan the city owns the fee of the streets, while it does not in Brooklyn.

In answer to a number of complaints about interference with vault rights along Elm street in building the present subway, the counsel to the Rapid Transit Board advised that abutting property owners had merely revocable license to maintain these vaults, and that all their rights ceased on being notified by the chief engineer that the space occupied by them was necessary for rapid transit purposes., In Brooklyn it was necessary to institute a condemnation proceeding to acquire an easement to operate a rapid transit railroad through and under Fulton street, in which the oaths of the condemnation commissioners were filed on June 2, 1903, and which proceeding is still pending.

In answer to several complaints made by property owners on Fulton street against interference with their vaults, the counsel to the Board advised them of the institution of condemnation proceedings and referred them to the Corporation Counsel, evidently on the theory that these vault rights were covered by these proceedings (Minutes, Rapid Transit Board, Vol. 6, pages 3584, 3700).

In the case of the claim of the Sterling Piano Company, I find, on inquiry, that the only permit for vault privileges in connection with this building was one Issued to C. F. Bond, president, on May 21, 1901, and that the subway, as originally planned, at this point, would take all of their vault space, but on the request of the Sterling Piano Company a further study of the plans was made, and it was found that by altering the design of the subway structure a space could be left over the roof of the depressed track of sufficient depth to permit them to still maintain a vault. This change was made to accommodate the Sterling Piano Company, but when it came to a question of restoring the vault they were not satisfied with the sub-contractor's offer to restore it with glazed tiles, such as are used in the subway stations, but demanded that the vault be restored with a very expensive tile, such as was used in the vault prior to the building of the subway. In view of these facts it seems to me:

First. That such vault rights as these abutting property owners had were extinguished by the condemnation proceeding, and that they were then placed in the same position as property owners in Manhattan whose vault licenses had been revoked, and that if entitled to any compensation their remedy is through the condemnation proceeding which is still pending; and

Vol. II.4.

Second-That under the Rapid Transit Act, the title to an easement through this vault vested in the city on the fling of the oaths of the condemnation commissioners on June 2, 1903, and that in maintaining such a vault without a further permit from the city the owner of the building is maintaining an illegal and unauthorized structure; and

Third.-- That without reference to strict legal rights it is most unjust, where space for a vault remains, due to a change in the plaas made to accommodate the property owner, that he should then seek to impose such an additional expense upon the city to restore a vault allowed him as a mere matter of favor.

I, therefore, desire to advise you that, in my opinion, the Sterling Piano Company, if it sees fit to restore this vault in the manner it proposes, has no right to impose the expense of doing it upon the city of New York.

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Stipulation Not to Tear Down Wall at Wall Street Station of Subway Without Five Days' Notice to Owner.

OPINION OF COUNSEL.

Public Service Commission for the First District:

August 30, 1907.

GENTLEMEN. The case of Potter v. Board of Rapid Transit Railroad Commissioners was one brought to restrain the Board of Rapid Transit Railroad Commissioners from tearing down a wall which was built by the plaintif in the entrance to the subway on the west side of Broadway at the Wall street station. The intention originally was to agree with the owner of the Empire building for an entrance from the subway into his building. This agreement failed, and the owner of the building built a wall cutting off the subway station. The Board claimed that the wall was built so as to include a space of twenty-five feet by ten feet, which was properly included within the station limits, and proposed to tear the wall down. The Potter estate, owning the Empire building, brought an action to enjoin the destruction of the wall. This action was tried before Justice Fitzgerald and resulted in a decision for the defendant, thereby sustaining our right to this space, and holding, as I am informed, practically that the wall was illegally erected. This is not a matter of great moment now. The wall cuts off a space of twentyfive feet by ten feet, which is practically a recess, and which is of no particular value at present. However, when the Brooklyn tunnel is opened, a large passenger traffic will probably develop between this Wall street station and Brooklyn, and it may be necessary to enlarge this station. When this time arrives this space will be valuable. It is suggested by the plaintiff that, pending the appeal, we enter into a stipulation that we will not tear the wall down, except on five days' notice, so that he may have an opportunity to apply to the court for a stay. If we do not give this stipulation, he will apply immediately for a stay. In my opinion, the stipulation should be given, because, first, there is no reason why the wall should be torn down at present, as it would simply deface the station; and, second, if the plaintiff should now apply for a stay we would have no practical reason for opposing it, whereas, if we should reach a point where this space is needed for the enlargement of the station, and then the question of the stay should be brought before the court, we would have much stronger ground for opposing it.

I therefore suggest that you authorize me to enter into a stipulation upon these lines. I inclose a diagram showing the space involved.

Yours very truly,

(Signed)

ABEL E. BLACKMAR,
Counsel to the Commission.

Application for Privilege of Window in Subway Wall

Procedure.

OPINION OF COUNSEL.

August 22, 1907. TRAVIS H. WHITNEY, Esq., Secretary, Public Service Commission for the First District:

DEAR SIR.- I am in receipt of your letter of August 12, transmitting an application made by Mr. Burton Thompson for the privilege of putting a window in the subway wall at building No. 1 Wall street. He apparently makes his application on behalf of a corporation known as the " No. 1 Wall Street Corporation.” On June 12, 1907, he made a similar application to the Board of Rapid Transit Railroad Commissioners.

The No. 1 Wall Street Corporation, under a contract with the Board of Rapid Transit Railroad Commissioners, which appears at page 4364 of the minutes in October last, appears to have an entrance from its building to the Rector street

station of the subway, constructed under the Brooklyn-Manhattan contract, known as Contract No. 2. The contractor, the Rapid Transit Subway Construction Company, and the assignee of the lease portion of that contract, namely, the Interborough Rapid Transit Company, are also parties.

Your inquiry is as to what procedure should be followed in applications for windows of this character, and includes the question whether it is necessary for the Interborough Rapid Transit Company first to consent before the consent of the Commission is given.

I have no doubt that before a show window or any window of the character desired by this applicant can be constructed in the wall of the subway structure the consent of the lessee, in this case the Interborough Rapid Transit Company, is essential. I think, also, inasmuch as the Brooklyn-Manhattan contract is not yet entirely completed, that the consent of the contractor for construction, the Rapid Transit Subway Construction Company, would also be essential.

As to procedure,. I suggest that the consent of these corporations should be required prior to an application being made to this Commission for its consent and approval, though it would be practicable, if the terms of the application were satisfactory, to pass a resolution approving the application and stating specifically that the same should be subject to the consent of the Interborough Rapid Transit Company and the Rapid Transit Subway Construction Company, which in each. case should be acknowledged and filed with the Commission.

I find that in the case of previous applications, after investigation by the standing committee on plans and contracts of the late Board, it was suggested that applicants should pay a uniform rate of one dollar per square foot per month for show window space, the owner of the window to pay all expenses of installation and the work to be done in accordance with plans approved by the Chief Engineer of the Board; that the terms should be subject to renewal annually, and the privilege subject to revocation by the Board on sixty days' notice in writing, and that the owners of the show windows save the city harmless from any and all injury which might be sustained to said show windows or premises in the rear of the same, or in any building erected thereon, by reason of anything of any nature whatsoever happening to said premises by reason of such show windows fronting on the subway. The consent of the Interborough Rapid Transit Company was also required, inasmuch as that company had called the attention of the Board to the provision of the Brooklyn-Manhattan contract, page 169, denying in general advertising privileges to that company, and suggesting that it was not consistent to grant such privileges to exceptional property owners.

I am now advised by the Chief Engineer that no show window privileges of this description have ever been granted, though in cases where property owners conveyed property or rights to the city some such privileges have been obtained.

Yours very truly,

(Signed)

ABEL E. BLACKMAR,
Counsel to the Commission.”

Bond - Substitution of, by Rapid Transit Subway Construction Company in Place of $1,000,000 Cash Deposited Under Contract No. 2, Not Allowable - Rapid Transit Act, Section 38, L. 1906, Ch. 472, Section 14.

OPINION OF COUNSEL.

Public Service Commission for the First District:

October 31, 1907.

GENTLEMEN. You have referred to me the request of the Subway Construction Company to substitute a bond in the place of $1,000,000 cash which was deposited by the contractor under Contract No. 2, for the construction of the so-called Brooklyn-Manhattan subway, as security for the construction agreement, with the request that I examine the same and advise as to procedure.

It seems to me that there was a serious question as to the legality of such proposed action I have therefore held the matter under advisement until the present time.

When Contract No. 2 was made, the law required a deposit of $1,000,000 in cash or securities as security for construction, but permitted the continuing security for rentals to become due and generally for the performance of the terms of the contract, to be made either in the form of a continuing bond or of a deposit of cash or securities.

A deposit of $1,000,000 in cash having been made under Contract No. 2, as security for construction, and also $1,000,000 more in securities as a continuing security, the contractor requested permission to file a continuing bond and to have the $1,000,000 deposited as continuing security released to him. A supplemental contract was thereupon made between the Board and the contractor altering the terms of the original contract so as to require a continuing bond with sureties in

the place of the deposit of securities, and said $1,000,000 in securities which had been lodged for a continuing deposit were returned to the contractor.

The contractor now requests that the $1,000,000 lodged as security for construetion be returned upon a bond being given in its place, and the question is whether this may legally be done.

Assuming that this might legally be done as to a continuing security, it does not follow that the same power exists as to the security given for construction. The law in existence at the time the contract was made required a deposit of cash or securities to secure construction, but permitted either a deposit of cash or securities or a bond to be given for the continuing security.

Section 38 of the Rapid Transit Law authorized the Board and the contractor to agree to a change in the provisions of the contract. It might therefore, be held to follow that anything which could legally have been inserted in the original contract could be provided for in a supplemental one, and that in this manner a continuing bond could be substituted for the cash deposit and the cash returned. As, however, the law did not authorize a bond to be taken to secure construction in the first instance, it would seem to follow that unless there has been some change in the law this result cannot be accomplished by a supplemental contract. The counsel for the contractor argue that under the Elsberg Bill of 1906, the Commission has the discretion to accept a bond instead of a cash deposit as security for construction, and that therefore, under section 38, it may make a supplemental contract or change in the original contract substituting a bond for the cash, and providing for the return of the cash. If the Elsberg Bill can be held to repeal or change the original law as applicable to contracts which had been executed before the Elsberg Law was passed, this conclusion might possibly follow, but such is not the case.

Section 14 of the Elsberg Law is as follows:

Nothing in this act contained shall repeal, modify or alter any provision of the act hereby amended in respect of any railway or railways constructed, constructing or contracted for thereunder when this act takes effect; but the act hereby amended shall be and continue in full force and effect in respect of such railway or railways so constructed, constructing or contracted for, as if this act had not been passed." This provision of the Elsberg Law, which is not printed in the Rapid Transit Act, seems to me to be conclusive upon this subject.

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My opinion, therefore, is that no change in the contract can be made by agreement, under section 38, which shall contain a provision which could not legally have been inserted in the original contract under the law then in existence. the law required that the contract should provide for a deposit of cash or securities to secure the agreement for construction, and it did not authorize the taking of a bond for that purpose, it is not in my opinion competent to make a supplemental contract at this time which shall authorize the substitution of a bond for the cash deposit.

Yours very truly,

(Signed)

ABEL E. BLACKMAR,
Counsel to the Commission.

Bond

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Substitution of Bond of United States Fidelity and Guaranty Company for One of Lawyers' Surety Company, as Surety for American Bridge Company, as Sub-Contractor Under Contract No. 1.

OPINIONS OF COUNSEL.

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

DEAR SIR.I am in receipt of your letter of August 16, transmitting a request of the Lawyers' Surety Company and correspondence respecting a bond of that company as surety in $200,000, to John B. McDonald, for the American Bridge Company, a sub-contractor under McDonald, for which bond it is proposed to substitute a similar bond of the United States Fidelity and Guaranty Company, stating that it is to have the same force and effect as though executed on May 29, 1900, the date of the bond first mentioned. The bond of the Lawyers' Surety Company was assigned to the city of New York under the provisions of the McDonald contract, as modified, and is on file with the Comptroller.

The bond proposed to be substituted was approved as to form by Mr. Rives, Counsel to the late Board of Rapid Transit Railroad Commissioners. A resolution was passed by the late Board on April 11, 1907, approving of such substitution of bonds, subject to the consent of John B. McDonald, and the Rapid Transit Subway Construction Company.

The Lawyers' Surety Company's request now is for leave to withdraw its bond first given in view of the substitution of the United States Fidelity and Guaranty Company.

I am informed by you that after an examination of your files made at my request, you are unable to find the consents described in the resolution on file in your office.

I think that the consents to substitution mentioned in the resolution of the late Board should be given by an instrument executed and acknowledged and filed with this Commission, and that such instrument should also specifically assign to the city of New York the bond so substituted, the same to stand in place of the one previously given by the Lawyers' Surety Company and so assigned.

I do not think, however, the bond of the Lawyers' Surety Company can properly be withdrawn even when such consents to substitution are given and filed. Yours very truly,

(Signed)

ABEL E. BLACKMAR,
Counsel to the Commission."

NEW YORK, October 7, 1907.

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

DEAR SIR.I am in receipt of your letter of October 4, with which you sent me a letter of the Lawyers' Surety Company, which transmits consents of John B. McDonald and the Rapid Transit Subway Construction Company to a substitution of the United States Fidelity and Guaranty Company bond in place of one of the Lawyers' Surety Company, in the sum of two hundred thousand dollars. The last named bond was one given originally for four hundred and fifty thousand dollars as surety for the American Bridge Company to John B. McDonald, the American Bridge Company being a subcontractor under Mr. McDonald in the work of Con tract No. 1.

The bond for four hundred and fifty thousand dollars of the Lawyers' Surety Company was, with the consent of the late Board of Rapid Transit Railroad Commissioners, in September, 1905, reduced to the sum of two hundred thousand dollars. It is now proposed to substitute for the Lawyers' Surety Company as surety, the United States Fidelity and Guaranty Company, who are to give a bond in the sum of two hundred thousand dollars.

The bond proposed to be substituted was approved as to form by Mr. Rives, Counsel to the late Board of Rapid Transit Railroad Commissioners, and a resolution was passed by the Board on April 11, 1907, approving of such substitution of bonds, subject to the consents of John B. McDonald, and the Rapid Transit Subway Construction Company.

I wrote you previously in respect to this matter under date of September 4, 1907, making a suggestion that the consents should be given by an instrument executed and acknowledged and filed with the Commission, and that there should be an assignment of the new bond to the city of New York, so that the same might stand in place of the one previously given by the Lawyers' Surety Company, which had been assigned to the city.

The consents which you now transmit, and the assignment of John B. McDonald to the city, which is also transmitted by you therewith, are apparently forwarded to the Commission in pursuance of the suggestion in my letter.

I find that the consents are in proper form and duly acknowledged, and that the assignment by John B. McDonald of the said bond proposed to be substituted to the city of New York, is in proper form and in accordance with the practice followed by the former Board in such matters, as appear at page 986 of the minutes, Vol. 2.

It will be necessary that this assignment shall be also executed by the Public Service Commission for the First District.

These papers, that is to say, the original consents, the original assignment and the bond of the United States Fidelity and Guaranty Company, should remain on file together, with the bond of the Lawyers' Surety Company, which, I believe to be already in your files or in those of the auditing department of the Commission. The assignment of these subcontractors' bonds by Mr. McDonald as contractor under Contract No. 1, as additional security to the city, is in pursuance of a stipulation in the modification of the original Contract No. 1, which appears on page 235 of the contract. Very truly yours,

(Signed)

ABEL E. BLACKMAR,
Counsel to the Commission.

Violation of Eight Hour Law by Contractor for Subway Construction, Labor Law, Sections 3, 13.

OPINION OF COUNSEL.

September 27, 1907. TRAVIS H. WHITNEY, Esq., Secretary, Public Service Commission for the First District:

DEAR SIR. Referring to the letter of Mr. Norton, acting secretary, of the 20th inst., inclosing copy of letter from Mr. Rice, chief engineer, calling the attention of the Commission to the fact that the Bradley Contracting Company, the contractor for section 9-0-5 of the Brooklyn loop (Delancey street, between Bowery and Norfolk), has not complied with the contract in respect to requiring laborers to work more than eight hours a day, despite the fact that the chief engineer has twice

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