
    John D. Dailey and DeWitt C. Ivins, Plaintiffs, v. The City of New York and John T. Fetherston, Commissioner of Street Cleaning, Defendants.
    (Supreme Court, New York Special Term,
    June, 1914.)
    Contracts — terms of, with city of New York for final disposal of ashes, etc.— when contractor entitled to equitable relief.
    Where by the terms of a contract with the city of New York for the final disposal of ashes, rubbish, etc., the contractor is not prohibited from using dumping scows, he is entitled to equitable relief restraining the commissioner of street cleaning from abrogating the contract upon the sole ground that in loading dumping scows the pickers under an incidental contract cannot so thoroughly do their work as in the ease of deck scows.
    Action to restrain abrogation of contract.
    Alexander C. Ash, for plaintiffs.
    Frank L. Polk, corporation counsel (John F. Collins, of counsel), for defendants.
   Ford, J.

Plaintiffs’ contract with the city for final disposal of ashes, street sweepings and rubbish is the main contract; that of Clarke, advertised and let simultaneously by the city, for loading and trimming deck scows, dumpers and other vessels ” used by the plaintiffs, is incidental merely. Both contracts are to he read together because of the allusion in that of plaintiffs’ to the other (paragraph 12 of specifications). Nowhere in the final disposal contract is there a prohibition against the use of dumping scows by the plaintiffs. On the contrary, the terms used descriptive of the conveyances which might be used are broad enough to include them, and the specific provision for loading and trimming ‘ ‘ dumpers ” in the Clarke contract makes clear, in my opinion, the right of the plaintiffs to use them. That being so, paragraphs “ F,” “ N ” and “ 33 ” of their contract cannot be construed so as to give the commissioner of street cleaning power to abrogate this right. The authority given to that official may be exercised as to details of the work and in case of ambiguities or obscurities in the language of the contract but not to the extent of destroying its identity or mutuality. The dumping at sea, as carried on by the plaintiffs, is in accord with the laws, rules and regulations of the state, city and federal governments; and, indeed, the defendant through the commissioner of street cleaning’ does not object to the dumping’ at sea but merely to the use of dumping scows, upon the sole ground that in loading them the pickers under the Clarke contract cannot so thoroughly do their work as in the case of deck scows. That may be so, but there is no claim that full freedom of action is not given to them to pick as much as the nature of those conveyances will permit and that is, in my opinion, the only duty owing either to the city or to the other contractor by these plaintiffs under their contract. The damage done to the contractor by a prohibition of the use of dumpers would be of such a nature as, in my opinion, to call for equitable relief. Judgment for the plaintiffs. Settle findings on notice not later than June twelfth.

Judgment for plaintiffs.  