
    Booth & Flinn, Ltd., Appellant, v. The City of New York, Respondent.
    
      Contract — action to recover cost of construction of underground magazines required in performance of contract for construction of portion of aqueduct under New York city.
    
    
      Booth & Flinn, Ltd., v. City of New York, 201 App. Div. 836, affirmed.
    (Argued January 17, 1923;
    decided February 2, 1923.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 15, 1922, unanimously affirming a judgment in favor of defendant entered upon a verdict directed by the court. Plaintiff’s predecessor in interest, the Pittsburg Contracting Company, was contractor with the board of water supply, acting for the city of New York, for the construction of a portion of the Catskill aqueduct running from University avenue in the borough of The Bronx to Eighth avenue and Ninety-ninth street in the borough of Manhattan. This action was brought to recover the price of building certain underground magazines required to store dynamite used in the prosecution of the work. The question was whether the work of constructing these underground magazines was incidental to the work of constructing the tunnel, or whether it was part of the construction work itself, which should be measured and paid for just as any other tunnel excavation.
    
      Edward M. Grout and Dean Potter for appellant.
    
      John P. O’Brien, Corporation Counsel (John F. O’Brien and Elliot S. Benedict of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Hogan, Cardozo, Pound, McLaughlin, Crane and Andrews, JJ.  