
    In the Matter of the Application of the Board of Rapid Transit Commissioners.
    Motion granted.
   Per Curiam:

The corporation counsel, on behalf of the city of New York, having joined with the rapid transit commissioners in this application, and the municipal authorities, as well as the rapid transit commissioners, having represented that, in their opinion, a bond of $5,000,000 will, in view of the form of the contract and the conditions under which the rapid transit road is now to be constructed, amply protect the city, the rapid transit commissioners are relieved from the stipulation which they gave as a condition- upon the confirmation of the report of the commissioners in approving of the construction of this proposed railway to the extent that a bond of $5,000.000 will be a compliance-with the stipulation. Present — Van Brunt, P. J., Barrett, Patterson and In-graham, J j.

Van Brunt, P. J.

(dissenting): I cannot concur with the majority of the court in the disposition of this application. While, in view of the evidence produced of tlie difficulty of procuring a bond in the sum of $14,000,000 to secure the performance of the proposed rapid transit contract so far as it related to construction and equipment, a reduction in the amount of such bond might be justified, yet it does not seem to me that, in justice to the property owners, such a reduction should be made as virtually to deprive them of the security which upon the original application was by this court deemed absolutely necessary for their protection and upon which the consent of the court was founded. So far as the consent of the city authorities to the road is concerned, that in no way protects those whose interests the Appellate Division, in passing upon this application, is bound to protect. The argument advanced, that the - securitydem'andpd is in excess of that which has ever been required in similar contracts, is of no possible weight, because there has never yet been: a contract entered into presenting any of the peculiar features which are so prominent in the proposed rapid transit, contract. While a ten per cent bond might ‘possibly be a reasonable security for construction, it is after construction is completed tliat the main burdens of the contractor begin; he is then for the first time required to invest in the enterprise his own money to the extent of over thirty per cent of the entire cost of construction, and in order to secure this advance. a bond of less than one-half tlie amount is required. It is" conceded upon the moving papers that t-he security required by the city of Boston upon its subway contracts was twenty per cent-, which would amount, in the case at bar, to a bond of from $8,000,000 to-$10,000,000. The security required by the United States government is twenty-five per cent, amounting, in tlie case at bar, to a bond of from $10,000,000 to $12,000,000; and no case can be cited where a work of the remarkable character required by the contract in question is to be prosecuted, that it has been allowed to proceed upon the giving by the contractor of'such grossly inadequate security as has now been determined- upon. It is to be observed that this peculiarity of the contract was the reason for fixing, the bond at the amount mentioned upon the original application, and these conditions have not changed. After construction, t-he expenses of which are to be paid by the city, the contractor out of liis own money is bound to equip and run the road, towards which latter expenditure the cit-y is required to contribute nothing, and this agreed contribution must necessarily amount- to $8,000,000 or $10,000,000—a feature which is entirely different from any contract which the city lias ever entered into before or probably will be called upon to fulfill again. If the contractor fails in the performance of the contract, as was originally stated, it must be because the-expenses of construction and equipment are greater than he anticipated^ and the city must necesssarily furnish the "many additional millions required to complete and make the work useful.  