as is required by section 2751 of the Code of Civil Procedure; but the action upon the claim was not commenced until the 6th day of April, 1901, the summons being dated March 29, 1901. Peter Early, the administrator of the estate of Rose Ann Kinsella, was made the defendant in the action, and contested the claim. A trial was had, and Mary Ann Korn was successful, recovering a verdict, upon which judgment was entered in the office of the clerk of Niagara county on April 14, 1902, for $3,000 damages and $131.15 costs. It appears that this is the only outstanding claim against the estate, and that there is no personal property remaining out of which the judgment can be paid. * * The procedure which the judgment creditor and petitioner herein. has adopted to subject these proceeds to the payment of her judgment, I think, must fail of its purpose. I am not aware of any authority in the Surrogate's Court for subjecting real estate to the payment of debts, or distributing surplus moneys arising from the sale of real estate, except such as is contained in the statute law. Section 2749 of the Code of Civil Procedure, which is not unlike the same provision contained in the Revised Statutes, provides that "real property of which a decedent died seized * * * may be disposed of for the payment of his debts and funeral expenses, or for the payment of judgment liens existing thereon at his death, *"; making certain exceptions which need not now be referred to. Then follow certain other sections of the Civil Code, regulating in detail the method of procedure, providing for the giving of notice to the heirs at law and interested parties, and for the proving of the claims and mode of sale, and the distribution of the proceeds. Section 2750 provides that, at any time within three years after letters were first duly granted within the state upon the estate of a decedent, an executor or administrator may present to the Surrogate's Court a petition for the disposition of real estate of the decedent liable for the payment of the debts, and the next succeeding section provides: "The time, during which an action is pending in a court of record, between a creditor and an executor or administrator of the estate, is not a part of the time limited in the last section, for presenting a petition, founded upon a debt, which was in controversy in the action; if the creditor has, before the expiration of the time so limited, filed in the clerk's office of the county where the real property is situated, a notice of the pendency of the action, specifying the names of the parties, the object of the action, and, if the creditor's debt is made the foundation of a counterclaim, the nature of the counterclaim; containing a description of the property in that county to be affected thereby ; and stating that it will be held as security for any judgment obtained in the action. A notice so filed must be recorded and indexed, and may be cancelled, as prescribed, with respect to the notice of pendency of an action, in article nine of title first of chapter fourteen of this act. It may also be cancelled in like manner, or a specified portion of the property affected thereby, may be discharged from the lien thereof, by the order of the court in which the action is pending, made upon the application of the person having an interest in the real property, upon notice to the creditor, and upon such terms as justice requires. It will be observed that while the last section does not require, specifically, the filing of the complaint before or at the time of the filing of the notice of pendency of action, section 1670 does so provide in general terms respecting an action to recover a judgment and 123 New York State Reporter affecting title to, or possession, use, or enjoyment of, real property, and the next succeeding section provides the effect of such a notice. In the action brought by this judgment creditor the complaint was not filed until the judgment was entered. Assuming, however, without so deciding, that it was not necessary to file this complaint at or before the time of filing the notice of pendency, it is to be observed that the time which is excluded from the three-year limitation is that during which the action is pending, and the action brought by this judgment creditor was not commenced until three years had expired after letters of administration were granted. Under such circumstances the attempt to proceed under those provisions must fail. This seems further fortified by section 1538 of the Code of Civil Procedure, which provides that in actions of partition, where the three years have not expired after the granting of letters to an executor or administrator, the proceeds of the sale shall be paid into court, and not paid to the owner succeeding to the title of the decedent until after the expiration of the time, and proof is required to be made as therein specifically provided for showing that the contingency has arisen which entitles him to the proceeds. It is true that the section requires the moving party to show that no notice provided for in section 2751 has been filed within the time and as required by the statute. Nor do I think that sections 2797 and 2798 of the Code of Civil Procedure aid the judgment creditor in her contention. While the latter section specifically provides that where real property liable to be disposed of for the payment of debts is sold in an action specified in the preceding section to satisfy a mortgage or other lien thereon which accrued during the decedent's lifetime, and letters testamentary or letters of administration upon the decedent's estate were, within four years before the sale, issued from the Surrogate's Court of the state having jurisdiction to grant them, the surplus moneys must be paid into the Surrogate's Court, yet it does not seem to apply to actions of partition, and the preceding section does not seem in any way to extend the time for commencing the proceedings to sell the real estate; nor does it seem to dispense with or affect the proceeding taken for the sale of the real estate, except that after making a decree the surrogate may, and in a proper case must, stay the order to execute the decree. As to what remedy the petitioning creditor may have under sections 1837 to 1860 of the Code of Civil Procedure need not now be considered, nor is it necessary to determine whether an action may be maintained by her in equity to charge her claim upon the proceeds of the sale which are sought to have paid into the Surrogate's Court. Hamlin v. Smith, 72 App. Div. 601, 76 N. Y. Supp. 258. Such is not the character of this proceeding. I think the defendant must fail in this application, and the motion is accordingly denied, with $10 costs of motion. (96 App. Div. 213.) HAEFELIN v. McDONALD. (Supreme Court, Appellate Division, First Department. July 13, 1904.) 1. MUNICIPAL CORPORATIONS-PUBLIC WORK-PERFORMANCE-NEGLIGENCE OF CONTRACTORS. Where a city did not construct certain public work through its agents or servants, but contracted for the performance thereof, it could not be made liable for negligence in the manner in which the work was performed. 2. SAME-SUBWAY-CONSTRUCTION-PLANS-ADOPTION-OBLIGATION OF CITY. Since, under Laws 1891, p. 3, c. 4, as amended by Laws 1894, p. 1873, c. 752, providing for the construction of a subway in the city of New York, the city was required to approve the plans and specifications prepared by the board of rapid transit railway commissioners, the city was bound to exercise reasonable care to adopt plans and specifications which could be performed without injury to adjoining property, which duty could not be delegated. 3. SAME CONTRACTS. A contractor with a city for the construction of a subway provided for by statute covenanted that the plans and specifications to which the city had assented, if properly carried out, would not involve any damage to abutting property, and that during the performance of the work he would maintain the streets and other public places in a reasonably safe condition, and indemnify and save the city harmless from any liability arising therefrom, and would make good any damage arising in the course of construction. By a further provision the contractor agreed to become responsible for all damage that might be done to abutting property by the method in which the construction should be done, not including any damage necessarily arising from proper construction pursuant to the contract, or the reasonable use, occupation, or obstruction of the streets. Held, that such covenants were for the sole benefit of the city, and, since the city was not liable to an abutting property owner, who was a stranger to the consideration for the contract, for the negligence of a subcontractor in carrying on the work the property owner could not enforce the covenants against the contractor. Patterson, J., dissenting. Appeal from Trial Term, New York County. Action by Joseph A. Haefelin against John B. McDonald. From an interlocutory judgment sustaining a demurrer to plaintiff's complaint, he appeals. Affirmed. MCLAUGHLIN, Argued before HATCH, PATTERSON, INGRAHAM, J. The complaint alleges that the plaintiff is the owner of a piece of property abutting on the easterly side of Broadway, between 164th and 165th streets, in the city of New York; that on or about February 21, 1900, the city of New York, acting by the board of rapid transit railroad commissioners, entered into a contract with the defendant for the construction and equipment of a rapid transit railroad upon the routes and pursuant to the general plan 11. See Municipal Corporations, vol. 36, Cent. Dig. § 1580. and 123 New York State Reporter therein prescribed; that the said contract provided that the defendant should receive, in consideration for the said work, a large sum of money from the city; that the said routes and plan provided for the construction of the said railroad under the portion of Broadway upon which the plaintiff's premises abut, at a depth of more than 100 feet below the surface of the street; that the said contract contained provisions which were made for the benefit of persons whose property abutted on the streets in which said railroad was to be constructed, making the defendant liable to the owners of such abutting property, or of buildings or structures thereon, for damage thereto caused by improperly performing the work thereunder, which provisions were as follows: "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 foundation, walls, or other parts of adjacent buildings or structures. The contractor shall, during the performance of the work, safely maintain the traffic on all streets, avenues, highways, parks, or other public places in connection with the work, and take all necessary precautions to place proper guards for the prevention of accidents, and put up and keep at night suitable and sufficient lights, and indemnify and save harmless the city against and from all damages or costs to which it may be put by reason of injury to the person or property of another or others, resulting from negligence or carelessness in the performance of the work or from guarding the same, or from any improper materials used in its construction, or by or on account of any act or omission of the contractor or the agents thereof. The contractor shall be responsible for all damage which may be done to abutting property or buildings or structures thereon by the method in which the construction hereunder shall be done, but not including in such damage any damage necessarily arising from proper construction pursuant to this contract, or the reasonable use, occupation, or obstruction of the streets thereby. The contractor shall obey any order of the engineer to support or secure abutting property or any structure thereon; but the contractor shall not be relieved of responsibility by any failure or omission of the engineer to give any such order or notice of danger." It was further alleged that the specifications, which were annexed to and made a part of the said contract, also contained provisions which were likewise intended for the benefit of owners of abutting property, regulating blasting in tunnel excavations, which required blasting to be conducted with all possible care, and in such a manner as not to shatter the roof and sides outside of the section lines, nor endanger adjoining property; that blasts should not be fired between the hours of 8 p. m. and 7 a. m., where tunnels are in front of private residences, without the express permission of the board and under such restrictions as it may impose; that prior to September, 1900, the defendant entered into a subcontract with the firm of L. B. McCabe & Bro., whereby the said firm agreed to construct the sections of said. railroad known as "Nos. 13 and 14," and which include that portion of said railroad which passes through the part of Broadway upon which the premises of plaintiff abut; that during the month of September, 1900, the said firm, or persons acting under or by authority of their said subcontract with the defendant, entered upon and took possession of the portion of Broadway lying within the route desig nated by the said contract between 158th and 168th streets, and commenced to excavate the same for the purpose of constructing the said railroad; that the excavation was through solid rock, and was carried on by means of blasting, which was done in violation of the specifications of the contract, the blasting being carried on at night between the hours of 7 p. m. and 7 a. m., without the permission of the said board; and that "The method employed for such blasting was not proper or reasonable for the prosecution of the said work, but, on the contrary, such heavy and excessive charges and high explosives were used in such blasting that the entire neighborhood was shaken thereby, and the provisions of said contract were otherwise violated, and other improper methods were adopted for the construction of the said work." It was further alleged that the plaintiff's apartment house was so shaken and shattered by the jar and concussion caused by such improper and unnecessary and excessive charges and high explosives used in the blasting that the windows thereof were broken, the ceilings were cracked and in danger of falling, and the brick walls were loosened and shattered and otherwise seriously injured, and that the damage sustained by the plaintiff by reason of the improper manner in which the defendant performed the said contract was $6,000, for which amount the plaintiff demands judgment. The defendant demurred to this complaint, upon the ground that it did not state facts sufficient to constitute a cause of action, which demurrer was sustained by the Special Term, and the plaintiff appeals. The damage complained of, and for which the plaintiff seeks to recover, was caused by the negligence of subcontractors, or by the employment of improper and unreasonable methods for blasting by a subcontractor in doing the work required by the subcontract. It is not alleged that this defendant was personally responsible for the method employed by the subcontractors, or for the negligence or improper work done by them. In determining this question, we have first to ascertain the true construction of this clause of the contract, and just what obligation was imposed on the defendant, and then whether the plaintiff can enforce directly against the contractor the covenants entered into with the city. The statute under which this contract was made is chapter 4, p. 3, of the Laws of 1891, as amended by chapter 752, p. 1873, of the Laws of 1894. That act provided that there should be submitted to the vote of qualified electors of the city of New York the question whether an underground railroad should be built by the municipal corporation, and, if a majority of the voters was in favor of such municipal construction, that the railroad should be constructed by the city and at the public expense, and that the board of rapid transit railway commissioners should construct said railroad, and make and let all contracts required for the performance of the work necessary to be done and performed in and about the construction thereof. Laws 1894, pp. 1898, 1899, c. 752, §§ 12, 13. Section 34 of the act of 1891 (Laws 1891, p. 18, c. 4), as amended by the act of 1894 (Laws 1894, p. 1880, c. 752), provided that, in case the people should determine by vote that such railway should be constructed at the expense of the city, as soon |