
    New York Pneumatic Service Company et al., Respondents, v. P. T. Cox Contracting Company, Appellant.
    
      Contract — provision in contract for changing grade of street that contractor shall move, alter, readjust or rebuild pneumatic tubes belonging to public service corporation — when corporation may maintain action against contractor for cost of relocating said tubes.
    
    
      N. Y. Pneumatic Service Co. v. Cox Contracting Co., 201 App. Div. 33, affirmed.
    (Argued January 24, 1923;
    decided March 20, 1923.)
    Appeal from a judgment entered June 28, 1922, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of defendants entered upon a dismissal of the complaint by the court on trial at Special Term and directing judgment in favor of plaintiffs. Plaintiffs maintained pneumatic tubes under the surface of Fourth avenue in the city of New York. A change of grade having been determined on the city entered into a contract with defendant to do the work by the terms of which the contractor expressly undertook to move, alter, readjust or rebuild pneumatic tubes and mail tubes and to do all such additional and incidental work as might be necessary for the reconstruction and restoration of all surface, sub-surface and overhead structures which might have been directly or indirectly affected, disturbed or injured by the contractor in the progress of the work of construction, to as useful, safe, durable and good condition as existed before the construction work was begun. By reason of the change of grade it was necessary to relay certain of plaintiff’s tubes which defendant failing to do plaintiff undertook and carried to completion. For the cost of the work incidental thereto this action was brought.
    
      Howard G. Wilson and John C. Wait for appellant.
    
      E. Crosby Kindleberger and Arthur 0. Townsend for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Hogan, Pound, McLaughlin and Crane, JJ. Dissenting: Hiscock, Ch. J., and Cardozo, J. Absent: Andrews, J.  