
    Westinghouse, Church, Kerr & Company, Respondent, v. The Long Island Railroad Company, Appellant.
    
      Westinghouse, Church, Kerr c& Co. v. Long Island R. R. Co., 160 App. Div. 200, affirmed.
    (Argued October 28, 1915;
    decided November 16, 1915.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January. 13,191-t, affirming a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term without a jury. The case turns upon the construction of a contract by which the plaintiff undertook the electrification of certain of the defendant’s lines of railroad. The contract is of the kind known as percentage agreements, under which the contractor makes the original outlays and is reimbursed therefor by the employer with a percentage of the cost added for the profit. It is admitted that plaintiff performed the contract in all respects. The dispute in the case is whether the plaintiff is entitled, under the provisions of the contract, to recover from the defendant what the plaintiff was required to pay on account of a recovery had against the plaintiff by one Rosebrook, an employee, for injuries sustained while engaged in work covered by the aforesaid contract.
    
      
      William C. Beecher and Joseph F. Keany for appellant.
    
      Martin Conhoy for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Hiscock, Cuddeback, Hogan, Cardozo and Pound, JJ. Dissenting, on the dissenting opinion of Ingraham, P. J., below: Willard Bartlett, Ch. J., and Chase, J.  