of this route as far as the Willink entrance to Prospect park, but the consent of the Park Commissioner is still necessary, for, in my opinion, this route must be treated as a whole so far as consents are concerned, and the consents must all approve it as laid out and not a mere portion of it. In any event, the consent of the Park Commissioner is necessary for the part of the route from the Plaza to the Willink entrance. The question whether this route could be built as an extension of Contract No. 2 is dependent upon a construction to be given section 38 of the Rapid Transit Act. This section in full is as follows: "The Board of Rapid Transit Railroad Commissioners for and on behalf of the said city in which such road or roads may be constructed, may, from time to time, with the concurrence of six members of said board and the consent in writing, of the bondsmen or sureties of the person, firm or corporation which has contracted to construct, equip, maintain or operate said road or roads, or any of them, agree with the said contracting person, firm, or corporation upon the changes in and modifications of said contract, or of the plans and specifications upon which the said road or roads is or are to be constructed, but no change or modifications in the plans and specifications consented to and authorized pursuant to section 5 of this act shall be made without the further consent and authorization provided for in said section; but in no event shall the annual rental to be paid to said city for the use of said road, be reduced below the minimum rate herein before provided." a I desire to draw especial attention to the fact that this section applies to "changes in and modifications of said contract or of the plans and specifications upon which said road or roads is or are to be constructed," and that nowhere is the express permission given for the construction of extensions as such under modifying contract. The construction of this section in regard to extensions has twice engaged the attention of the counsel to the former Rapid Transit Board; once in the case of the Fort Lee extension, and again in the case of the Van Cortlandt park extension. In the fetter of counsel of 16th July, 1903, printed at page 2219, Vol. 4 of the Rapid Transit Minutes, it is said: "In drafting the papers for the proposed spur to Fort Lee Ferry on 130th Street and the proposed connection with the Manhattan Elevated Railroad at 3rd and Westchester Avenue, we have had to consider whether these spurs are to be deemed to be technically complete new routes within the meaning of the provisions of Sections 34 and 36 of the Rapid Transit Act prescribing the form of contracts and the procedure in letting them, or whether on the other hand, these spurs were to be treated merely as incidents of the main line of the Rapid Transit Railroad now under construction. We are satisfied that the latter is the case. Each of these spurs is very short, costing a relatively small sum of money, perhaps $100,000 or $150,000, and of no value whatever except as an incident to the Manhattan-Bronx Rapid Transit Railroad. It would seem to be quite absurd that, for the construction of these spurs, the Board should go through the illusory form of competition involving delay and large expense and should require in each case a cash deposit of $1,000,000 and a bond. The competition would be sheerly illusory, for the only value of the spurs is in making the Manhattan-Bronx Railroad more useful to the traveling public.” In concluding this opinion, however, the counsel thought it well to qualify it by adding to it as the last paragraph the following statement: "It is proper for us to add that this, in our opinion, would not apply to any addition or extension long or important enough to be treated as a route in itself or as something more than a relatively unimportant incident to the main line of railroad already contracted for.' It is to be noted that one of the reasons which doubtless had considerable effect in the decision of this matter, namely, the requirement of a cash deposit of a million dollars and a bond on all contracts, is no longer present, the Rapid Transit Act having been amended in that regard. In the second opinion, that in relation to the Van Cortlandt park extension, of 6th August. 1906, printed at page 4293, Vol. 7 of the Minutes, the scope of section 3 is somewhat extended, but the general reasoning of the Fort Lee ferry opinion is reaffirmed. In this opinion the counsel said: "The Van Cortlandt Park extension is an elevated line of about 5,300 feet, or almost exactly one mile in length. If constructed it is intended to omit the part of the original line extending from Broadway to Bailey Avenue, about 600 feet long. The net addition to the original line will therefore be about 4,700 feet, less than nine-tenths of a mile of elevated railway. It is proposed by the Chief Engineer to construct three stations on the new extension, namely, at 231st Street, 238th Street and 242nd Street, the latter being located near the entrance to Van Cortlandt Park. The actual cost of this extension is estimated by the Chief Engineer at $735.000, while the estimated cost of the part to be omitted from Broadway to Bailey Avenue is $60,000, not including the cost of the terminal station which is replaced by that at Van Cortlandt Park entrance. "It will thus be seen that the proposed line constitutes a net addition to the original route of about 4% in length and less than 2% in cost. It was so designed as to be attached to and used with the original road. It obviously would be of no value as an independent line, for, as laid out by your Board and approved by the other constituted authorities, it could command no traffic if separated from the main stem." Applying this reasoning to the proposed Prospect park extension, we find that the original contract price for Contract No. 2, extending from Park Row, in Manhattan, to Flatbush avenue in Brooklyn, was $2,000,000 for construction, and an allowance of $1,000,000 for the purchase of terminals, which will be somewhat increased by the four tracking of Fulton street, the cost of which is to be borne equally by the city and the contractor. Instead of an unimportant and relatively inexpensive addition, as in the case of the Fort Lee ferry and Van Cortlandt park extensions, we have here a road, considering it on the basis of its extension, merely to the Willink entrance to the park, about a mile and three-quarters in length, containing four tracks from Atlantic avenue to the Plaza, a large loop in the Plaza and two tracks from the Plaza to the Willink entrance, all of which, I am informed by Mr. Rice, will cost between three and one-half and four millions of dollars. I also wish to call the attention of the Commission to the difficulty, or which I am informed by Mr. Rice, in the matter of grades on this road, if it terminates at the Willink entrance. There is quite a hill beginning at the Willink entrance to the park and rising to the Plaza, and the stopping of this road at the Willink entrance would therefore present the problem of stopping and starting at the foot of a hill. On the basis of the route, as laid out, extending down to Parkside avenue, the length will be increased to about two and one-half miles, and the cost, due to the large eight track terminal yard on Ocean avenue, increased to between seven and eight millions of dollars. In addition to the length and cost, it seems to me that it would be possible that even if this road could not be operated by itself, it could be operated in conjunction with the Fourth avenue route in Brooklyn by means of a short connection at Flatbush avenue and Fourth avenue, and might possibly be operated by the Brooklyn Rapid Transit System by connection with its open cut road at Malbone street and its elevated road at Atlantic avenue. In my opinion, section 38 was never intended to permit such an important extension to be built under the guise of a modification of the contract, and it seems to me to have more in view a modification, such as that involving the construction of additional tracks at 96th street in the present subway. There is an additional reason for this conclusion in the further consideration that since the execution of Contract No. 2 containing a leasing provision for thirty-five years, the Legislature has amended the Rapid Transit Act in this regard by prohibiting leases for longer than twenty years. We must accept this until changed as the policy of the State, and for that reason it would be improper, by treating this important section as an extension, to place it under the thirty-five year leasing provision of Contract No. 2, whereas by a new contract made in accordance with the law as it now stands it would be impossible to make a lease for more than twenty years, effecting a practical evasion of the provisions inserted in the Rapid Transit Act by the Elsberg bill of 1906. There are two methods under which this section can be built. It can be built (1) under section 32a of the act at the expense of the company, or (2) under the system of municipal construction. Section 32a permits the building of extensions of existing roads wholly at the expense of the railroad company at a rental to be fixed by the Commission to be operated by the company for a period not longer than twenty-five years and for renewals not exceeding twenty years in the aggregate, and it is further provided that upon such termination of such franchise, right or authority, the plant and structure together with the appurtenances thereto of the grantee constructed pursuant to such certificate except rolling stock and other movable equipment, shall become the property of the city without further or other compensation to the grantee." It is doubtful whether the Rapid Transit Subway Construction Company, as the contractor under Contract No. 2, would care to avail itself of the provisions of this section, but such a method is at the disposal of the Commission. There remains the final method of construction at municipal expense under which the Commission can, subject to the consent of the Board of Estimate and Apportionment, make a contract for construction, construction and equipment or for construction, equipment and operation, but under the present provisions of the act the term of such operation cannot be longer than twenty years. If the money for construction were available, it might be that the Commission could construct the subway at the same time it is constructing the Fourt avenue route, and when completed it could be used either in connection with Contract No. 2 or with the Fourth avenue route, thus securing a measure of competition under which to negotiate with the Rapid Transit Subway Construction Company, or it may be that the Rapid Transit Subway Construction Company would be willing to take this under a contract for construction, equipment and operation for a twenty-year term, trusting to secure a further extension on the expiration of such term. It seems to me that the Commission might well consider carefully the advisability of recommending an amendment of the law to permit under proper safeguards the extension of an existing route under the terms of the existing contract. I am also in receipt of Commissioner Bassett's letter of the 12th inst., advising me that the Commission wished this department to proceed with the completion of the consents for this extension. As I have shown above, the only remaining consent necessary is that of the Park Commissioner, and I would be glad if the Commission would advise me whether it wishes me to take the matter up with him. Yours very truly, (Signed) ABEL E. BLACKMAR, Counsel to the Commission. Contract for Subway Construction - Bridging Excavation in Street in Front of Nos. 605-607 Fulton Street, Under Requirement by Commission, Must be Considered Extra Work. OPINION OF COUNSEL. August 23, 1907. TRAVIS H. WHITNEY, Esq., Secretary, Public Service Commission for the First District: DEAR SIR.I am in receipt of your two letters of August 16 and 20, transmitting letters of the Realty Associates, bearing date respectively August 12 and 19, asking that for their use in taking down the front part of their building at No. 605 Fulton street, under a contract which they have with the city to take down the same, in preparation for the city's extension of Flatbush avenue, the subway contractor, under the Brooklyn-Manhattan contract in Fulton street. be required by the Commission to plank over his excavation in front of their building, and also asking the Commission's permission to bridge the subway excavation at that point for the same purpose. They also state that the decking over the bridging is necessary because they cannot take their material out and in except at the front. With this letter you transmit a report of Mr. Norton, Assistant Secretary, which indicates that he has looked into the matter and considers that the request of the Realty Associates may possibly be reasonable, but says that the expense of the work demanded may, if required, be extra work to be paid for under the contract, and added to the cost of the subway upon which rental is computed. You ask my opinion as to the powers of the Commission in this matter. I find that by the terms of the Brooklyn-Manhattan contract under which this work is being done, the city assures to the contractor the right to construct, according to the contract, free from the claim or interference of abutting property owners. The contract provides that between the Borough Hall and Flatbush avenue before construction is begun the contractor shall furnish to the engineer and receive his approval thereto, a plan indicating his method of procedure. This plan was duly submitted and approved by the late Chief Engineer, Mr. Parsons, as I am informed by our engineer, and it did not provide for covering the excavation at this point or for the support of any roadway sufficient to hold up trucks and traffic in building materials of this description. At this point the elevated railroad pillars have to be supported, and the plan above mentioned, which has been approved, has been worked out in careful detail. My opinion is that any requirement now by the Commission that the contractor cover or bridge the subway excavation at this point for the purposes of the Realty Associates will be extra work necessary to be paid for as such under the terms of the contract, and that the contractor is not bound under the contract to vary the plan of construction which has been properly approved, in order to give access to the property of the Realty Associates, for the purposes they mention. It is, however, within the power, no doubt, of the Commission, to require the work to be done under the direction of the chief engineer as extra work, if it sees fit to do so. I have been aided in this matter by a report of the chief engineer furnished to me at my request, as to the situation at this point. The same is herewith submitted to you, and it appears from that report that there is reason to think that the facts have not been fully set forth to the Commission by the Realty Associates, and that the direction to the contractor which they ask for is not really necessary. In regard to their request for permission to bridge over the sidewalk in their letter of August 19, which they say was stopped by the contractor, who required that they should first give a guaranty against injury or damage resulting from their work, it appears that the request of the contractor was that they should state in writing that they would be responsible for the safety of their own work, and that they should not place any load upon the timber work of the subway. They refused to write such a letter, stating that they had given a bond to the city, and that that was the only obligation that they would assume. I think that such a bond to the city does not sufficiently indemnify the contractor In the prosecution of the work which has been committed to him by the city. in the construction of the subway in Fulton street, and that unless the Commission is disposed to require the extra work necessary to be done by the contractor for the covering of his excavations and making the same sufficient to support the additional weight required, it should not authorize the Realty Associates to construct or maintain a bridge or covering of the character requested. Very truly yours, (Signed) ABEL E. BLACKMAR, 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, 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, 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 prop erty. 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, 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 response 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 |