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 expense 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 requir ing 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 1996, 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, ere., 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

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 Rights of Abutting Owners as to

Subway Purposes

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

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. 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 filing 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, Yours very truly,

(Signed)

ABEL E. BLACKMAR,
Counsel to the Commission.

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." June 12, 1907, he made a similar application to the Board of Rapid Transit Railroad Commissioners.

On

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